§ Order for Second Reading read.
§ SIR JOHN TRELAWNY
rose to move the second reading of this Bill. Its object was twofold; first, to extend to the Scotch Criminal Law the principle of the Common Law Procedure Act (1854), as to Affirmations in civil cases, and of Mr. Locke's Act of 1861, which added criminal cases, but failed to embrace Scotland, which only had the benefit of the principle in civil cases under an Act of 1855. That principle was, that persons, having religious opinions, may affirm in lieu of taking oaths. The second object of his Bill was to enable any persons in England, Scotland, Ireland, or any of Her Majesty's possessions to make affirmations in all cases where there is inability to take an oath from defect or want of religious knowledge or belief. A judicial oath had been defined legally (Starkie, vol. i. p. 22), to be "a solemn invocation of the vengeance of the 1286 Deity upon the witness, if he do not declare the whole truth, as far as he knows it." It was not his intention to enter into the question of the policy of requiring oaths, though it might be said that many high authorities were of opinion that it was not the oath which educed truth, but the fear of cross-examination; and that while many conscientious persons objected to take an oath, construing literally the Scripture maxim, "Swear not at all," and justice was thereby deprived of their testimony; on the other hand, false-swearing by persons with no conscience, was a crime of daily occurrence. The legislation of England on this subject had always been elastic. As opinions had rendered change necessary, so the good sense of Parliament had supplied the want which had arisen. Thus, special law existed for Quakers, Moravians, and Separatists. Again, for Jews. And thus a new case being apparent, demanded a corresponding adjustment of the law. He wished to express that he did not introduce this Bill as a Bill for the benefit of sceptics, though he might remind the House of Sir W. Ashurst's dictum cited by Bentham—that no man was so low as to be beneath the protection of the law. But he contended that the State had a complete right to the testimony of every citizen. It was a fallacy, therefore, to argue as if the giving of testimony was merely a privilege. On the contrary, it had been contended, by a writer subscribing himself "A privileged Sceptic," that Christianity in England gave sceptics important privileges, of which many Christians would be glad to avail themselves. The sceptic, being incompetent by law, was exempted from the necessity of giving evidence, in cases where it might be injurious to himself or his friends; he was thus also exempted from serving on juries, from attendance at inquests, from being a militiaman or a special constable, and from giving bail. So well did scoundrels appreciate the advantages the state of the law gave them, that "the oath trick," as it was called, was often resorted to in courts of law. He would put a case of a dignitary falsely accused of some dire offence, the accuser being a felon from Millbank, a notorious atheist, who, being examined on the voire dire, declared his belief in an avenging Deity, and a future state of punishments. The accused might be able to adduce in exculpation, say three witnesses of high moral character, whose word would be taken on any Bourse in Europe; but if they were 1287 unable to state that they held the belief in future punishment, the accused would not have the advantage of their testimony, and might be convicted. He was prepared to cite several recent cases in which, for want of such a measure as the present, great injustice had been done. He might mention that in 1861, eighty-three petitions had been presented on this subject. He only asked that equal justice might be meted to all Her Majesty's subjects. By the Act 6 & 7 Vict., c. 22, "various tribes of barbarous and uncivilized people, destitute of the knowledge of God, and of any religious belief, in certain of Her Majesty's Colonies," were exempted from the necessity of taking an oath. And the law of India declared that—Any person who, by reason of immature age, or want of religious belief, or who, by reason of defect of religious belief, ought not, in the opinion of such court or person, to be admitted to give evidence on oath or solemn affirmation, shall be admitted to give evidence on a simple affirmation, declaring that he will speak the truth, the whole truth, and nothing but the truth.A European, destitute of religion might thus be a witness in India; but if the case were referred to a court here, his evidence would, he apprehended, be no longer admissible, thus making credibility an affair of climate! But, indeed, the law as it stood, was one gigantic anomaly. A witness was credible when he stated grounds of incredibility, and incredible as soon as he had proved his credibility by the highest possible self-sacrifice. The law suborned witnesses, and extended to them a mendacity licence. It said to the infidel, you shall gain your cause if you will stale that you are a Christian; and to the Christian, you shall not be ruined if you will declare yourself an infidel. In both cases, the lie seemed to be the law's especial delight. And yet what, he asked, was the quality which, if it were the rule in all cases, and in all relations of life, would supersede the necessity of law altogether? He apprehended that this grand desideratum was Truth. We prayed that our magistrates might have grace "to execute justice and to maintain truth," and our law compelled them to execute injustice and to maintain lies. He desired to circumscribe the area of permissive mendacity; and to inculcate the duty of telling truth. Archbishop Whately had said, that "it is not enough to believe what we maintain; we must maintain what we believe, and because we believe it." After all, all he was contending for was to put the honest sceptic at 1288 least on as fair ground as the felon, whose evidence was taken quantum valeat. His opinions might or might not affect his credibility as a witness, but they ought not to render him imcompetent. He was tempted to quote the words of Bentham on this system, who asserted that—If the discovery of truth were the end of the rules of evidence, and sagacity consisted in the adaptation of means to ends, the sagacity displayed by the sages of the law in defining these rules wag as much below the level of that displayed by an illiterate peasant, or mechanic, in the bosom of his family, as, in the line of physical science, the sagacity shown by the peasant was to that evinced by Newton.He was happy to say that his views on this question derived support also from the writings of various living authorities. He would read a passage from the right hon. the Chancellor of the Exchequer—It does constitute a civil inequality when certain persons are singled out to make a declaration limiting, or tending to limit, the discharge of their obligation as Members of Parliament, or as holders of any other office of trust. But let me look at this declaration as a security. If it be a security, it is one which each person may interpret for himself; and I must confess it appears to be such, that while it may possibly fetter the hands of a very scrupulous man, those persons who assume to themselves an ordinary freedom will find very little difficulty in exercising under the pressure of it nearly all the liberty which they would exercise oven if there were no such restraint. Now, it is not good policy to depend upon declarations the whole force of which depends upon private interpretation.Again—There is no use in imposing in any shape civil disabilities on account of religious opinions." [3 Hansard, clxix. 1048.]He would also rend a valuable extract from an excellent work by Sir George Lewis, on The Influence of Authority in matters of Opinion, highly confirmatory of the line of argument he had taken—The attempt to propagate religious truth, and to crush religious error, by the criminal law and by penal inflictions, though it has, to a certain extent, met with a very decided success, is subject to strong counteracting forces. A man who attests the sincerity of his religious faith by the sacrifice of his life, or of his native country, his worldly possessions, and his means of gaining a subsistence, is respected for his fortitude, disinterestedness, and honesty, even by those who do not share his opinions. He is not regarded as a common malefactor, whose overt acts have been dangerous and pernicious to the security and peace of society, and have drawn down upon him the deserved punishment of the law. There is a sympathy with his sufferings, and a consciousness that the State, instead of gaining his conviction by the legitimate weapons of persuasion and reason, has, being the stronger, used its strength for causing its own opinion to prevail. A man who, like 1289 Galileo, makes a feigned and insincere submission to the opinion of the supreme power, and reads his recantation under duress, is scarcely considered a free agent, and his conversion confers but little credit upon the coercing party. Hence the use of force to diffuse religious opinions, by admitting the failure of reason in the individual case, has seemed to raise a presumption that reason was on the weaker side. True opinions in religion can, in the long run, only be propagated by reason, and that voluntary defference to authority which implies reason; but false opinions in religion can be as well propagated by force as true ones. The sword, the stake, and the gibbet are as good arguments in behalf of Mahometanism as of Christianity. In this way, the use of the civil power to repress religious error has been accounted almost as an admission that the other side were in the right; martyrdom has been regarded as a sign of truth as well as of sincerity; and the infant Church has been said to have been watered by the blood its martyrs." [Sir GEORGE LEWIS on The Influence of Authority in Matters of Opinion, p. 294.]Lastly he should read the House a passage for which he should offer no apology, as it was from that great thinker and leader of opinion Mr. J. Stuart Mill—It will be said, that we do not now put to death the introducers of new opinions; we are not like our fathers who slew the prophets; we even build sepulchres to them. It is true, we no longer put heretics to death; and the amount of penal infliction which modern feeling would probably tolerate, even against the most obnoxious opinions, is not sufficient to extirpate them. But let us not flatter ourselves that we are yet free from the stain even of legal persecution. Penalties for opinion, or at least, for its expression, still exist by law; and their enforcement is not, even in these times, so unexampled as to make it at all incredible that they may some day be revived in full force. In the year 1857, at the Summer Assizes of the county of Cornwall, an unfortunate man, said to be of unexceptionable conduct in all relations of life, was sentenced to twenty-one months imprisonment, for uttering, and writing on a gate, some offensive words concerning Christianity. Within a month of the same time, at the Old Bailey, two persons, on two separate occasions, were rejected as jurymen, and one of them grossly insulted by the judge and by one of the counsel, because they honestly declared that they had no theological belief; and a third, a foreigner, for the same reason, was denied justice against a thief. This refusal of redress took place in virtue of the legal doctrine, that no person can be allowed to give evidence in a court of justice, who does not profess belief in a God, (any god is sufficient), and in a future state; which is equivalent to declaring such persons to be outlaws, excluded from the protection of the tribunals; who may not only be robbed or assaulted with impunity, if no one but themselves, or persons of similar opinions be present, but any one else may be robbed or assaulted with impunity, if the proof of the fact depends on their evidence. The assumption on which this is grounded, is that the oath is worthless of a person who does not believe in a future state; a proposition which betokens much ignorance of history in those who assent to it (since it is historically true that a large proportion of infidels in all ages have been persons of distinguished integrity and honour); and would be maintained by no one who 1290 had the smallest conception how many of the persons in greatest repute with the world, both for virtues and for attainments, are well known, at least to their intimates, to be unbelievers. The rule, besides, is suicidal, and cuts away its own foundation. Under pretence that atheists must be liars, it admits the testimony of all atheists who are willing to lie, and rejects only those who brave the obloquy of publicly confessing a detested creed rather than affirm a falsehood. A rule thus self-convicted of absurdity, so far as regards its professed purpose, can be kept in force only as a bridge of hatred, a relic of persecution; a persecution, too, having the peculiarity that the qualification for undergoing it is the being clearly proved not to deserve it. The rule, and the theory it implies, are hardly less insulting to believers than to infidels. For if be who does not believe in a future state necessarily lies, it follows that they who do believe are only prevented from lying, if prevented they are, by the fear of hell. We will not do the authors and abettors of the rule the injury of supposing that the conception which they have formed of Christian virtue is drawn from their own consciousness." [J. S. MILL, On Liberty, p. 54.]He would occupy the attention of the House no further. He had stated cases exhibiting and illustrating an undoubted evil; he had those precedents in actual operation in the case of the law of India, as settled by eminent jurists, according to which law Europeans, being infidels, are received as credible witnesses. He had pointed out the inconveniences which might, and probably would result, if some measure like this were not adopted; and knowing the readiness of Parliament to adapt its laws to the exigencies which arise from time to time, he left the fate of the Bill with full confidence in the hands of the House.
§ Motion made, and Question proposed, "That the Bill he now read a second time."
THE ATTORNEY GENERAL
said, he should take upon himself to do that which the hon. and learned Member for Wexford had given notice of doing, namely, to move that the Bill be read a second time that day six months. He was not prepared to contend that the law upon this matter ought to be different in different parts of the Queen's dominions; and if the object of the Bill had been to assimilate it, he should not have risen to oppose the measure. But he could not shut his eyes to the fact that the pith and substance of the Bill were to be found in the second clause, and he was unwilling to do away with the security which was at present provided, by oath or solemn declaration, for arriving at the truth. The history of the law upon the subject of oaths and their administration 1291 would show that the second clause would go much beyond the relaxation and modification of the law which had been sanctioned by precedent. Connected with all the changes which had been made there was one important condition, which was entirely dissociated from the principle involved in the second clause, and that was the condition of religious belief in a Supreme Being, and in a future state of rewards and punishments. Perhaps he might be allowed to state shortly the history of the changes in the law. At common law no evidence was admissible which was not given under the sanction of an oath, though with regard to the form in which the sanction was given the law was justly tolerant, requiring only that the oath should be administered in the form in which it would be binding on the conscience of the person who took it. For instance, while a Christian took the oath on the New Testament, the Jew was permitted to take it on the Old, the Mahomedan on the Koran, the Hindoo by touching the foot of a Brahmin, and the Chinaman by breaking a saucer. It was not till the reign of William III. that the affirmation of the Quaker, even in civil cases, was made equivalent to the oath taken by other persons, and it was not until the 3 & 4 Will. IV. that the affirmation of Quakers and Moravians was made admissible in all cases. By the 1 & 2 Vict. c. 77, persons who had been Quakers or Moravians, but had ceased to be so, and yet still retained their religious scruples with regard to the taking of oaths, were allowed to make an affirmation just as if they still remained in the sect. By the Common Law Procedure Act of 1854, which was still further extended in 1861, it was made lawful for the judge, upon being satisfied of the sincerity of an objection to an oath, to allow the witness objecting to make an affirmation instead, provided he first solemnly declared that the taking of an oath was, according to his religious belief, unlawful. Such was the state of the law at the present moment; and in all the changes that had been made religious belief was retained as an essential condition. Hitherto, therefore, though the form might have been changed, the substance was retained; but if the House were to adopt the second clause, they would introduce an entirely new principle. By the Common Law Procedure Act of 1854, and the Act which followed it in 1861, the affirmation was substituted for the oath only in legal proceedings, civil and criminal, but the first clause of the present Bill would extend the 1292 privilege to any case in which persons might be called upon to take an oath. It was intended, therefore, to take effect in the case of jurymen, who at present would not be allowed to use the form embodied in the first clause. He had not heard of any general complaint from jurymen upon the subject, but at all events the matter as concerned jurymen was a small one. But the Bill would go much further. A gentleman called upon to take the oaths at the table of the House, those required to be sworn by Customs or Revenue regulations, or upon appraising property, would be all included in the scope of the Bill. A source of great inconvenience would be thus introduced. Was it right, because by the Common Law Procedure Act the Judges of the land, who were men of great experience and sagacity, should be satisfied of the sincerity of the objection before allowing an affirmation to be substituted for an oath, that any person whatever having to administer an oath should be made judge in this matter? He now came to the second clause, and, inasmuch as it was a clear departure from the principle of the old law, got rid of the sanction of religious belief, and of the moral sense connected therewith, and was calculated to create much inconvenience and evil, he felt it to be his duty to object to the proposal. The second clause declared that any person who, by reason of immature age or want of or defect of religious belief, ought not, in the opinion of the Judge, to be admitted to give evidence on oath or solemn affirmation, should be admitted to give evidence on a simple affirmation. At present, when a child was offered as a witness, if the Court was satisfied that, by reason of immature age or from the want of proper parental control or instruction, the child had no sense of a future state of reward and punishment, the trial might be postponed and the child was commonly committed to the care of the prison chaplain until the next sessions, with the view that in the mean time it might be-brought into a fit condition to give evidence. The second clause of the Bill did not in any way provide for that case; and yet, if the child was in the state he had described, it was not to be supposed by any reasonable man that the child could be in a condition, upon a simple affirmation, to speak the truth and nothing but the truth. If a child was intelligent enough to understand the effect of the affirmation, it would be no great stretch of imagination to suppose that in this country 1293 the child had been taught the rudiments of the Christian religion, and it was not among children that those rudiments had the least force. He therefore thought the portion of the clause providing for immature age uncalled for; but he looked upon that as the minor, and subordinate portion, the most essential part being the proposed enactment in cases of the want or defect of religious belief. He might observe that, apart from other objections, the machinery of the clause was defective; for one Judge in one court might be of opinion that a man ought not to be permitted to take an oath, while another Judge in another court might take a different view of the condition of the same man's mind. But the main point was, that they were called on to accept evidence in the absence of that assurance or guarantee of religious belief which had hitherto been looked on as indispensable in courts of justice; and the object of which was to secure, as far as practicable, that the persons making statements in those courts by which the rights and liberties of their fellow-subjects were adjudged should be true witnesses. That result was by the existing practice attained, though there might be a few instances to the contrary; and the proposed change would be productive of inconveniences far greater than any which the Bill would prevent. There was a class, and he feared a numerous class, of persons who had such a defective moral sense that they were not persuaded of the necessity of telling the truth simply as the truth, and who would not hesitate to state upon a simple and bare affirmation that which was untrue, if they fancied it their interest to do so, but who so far had a conscience that when an oath was administered they felt an obligation not to depart from the truth. This was a circumstance which those regarding the administration of justice practically, and not indulging in mere theories, should not overlook. It was often discovered that a witness attempted to evade the form of kissing the book, showing thereby that, though defective in moral sense, he felt the obligation of an oath; and reliance might be placed on the sworn testimony of such a person. It appeared to him that the measure would be productive of no benefit in the administration of justice, while many practical inconveniences were likely to arise in the working of the second clause of the Bill. He should, therefore, conclude by moving, as an Amendment, that the Bill be read a second time upon that day six months.
§ Amendment proposed, to leave out the word "now," and at the end of the Question to add the words "upon this day six months."
§ MR. ROEBUCK
said, it was a lamentable thing, that when any reform in the law was proposed, the reform was generally opposed by practising lawyers. The measure for admitting parties to a suit to be witnesses was opposed by almost every practising lawyer, but he thanked God that the vaticinations of those learned men were not listened to, and the consequence was that parties to a, suit were now examined, and great benefit was the result. That opposition to legal reform was, after all, not extraordinary; for law, in the eye of the practising lawyer, was not a science, but a craft to be studied as a means of procuring wealth and honours, but not for the purpose of improving the means of governing mankind. The practising lawyer's mind was like molten iron put into a mould, where it hardened and remained hard for ever. English law contemplated two classes of objections—one to the competence of a witness, and the other to his credibility; and he supposed the hon. Baronet meant that the evidence of that class of persons who were now included among incompetent witnesses should be received subject to observation. In reply to the argument of the hon. and learned Attorney General, that the main object was to obtain the truth, he must observe that the object was not to obtain the truth from every witness, but to give to the trying judges all the means and appliances—including the testimony of persons with no religious belief—to enable them to come to a correct decision. The course of proceeding pursued at present sometimes excluded good evidence and took the bad. A witness got into the witness-box, and, being examined on what was called the voire dire, was asked whether he believed in a God and in a future state of reward and punishment, and, on replying in the negative, he must go down. Now, that man had told the truth. Another witness of precisely the same opinions declared, on being similarly questioned, that he was a believer, and the consequence was that the truth-telling witness was shut out and the false one accepted. That was an argument he had never heard answered. He knew that in the world's opinion the state of mind called unbelief was a crime, or stain at least; but the world did not generally seem to recollect that belief and unbelief were not acts of volition. 1295 Consequently, there might be learned, good, and honourable men with minds in that unhappy condition that they did not believe the national religion. The hon. and learned Attorney General spoke about persons of immature age. What was the practice when a little girl of seven or eight years of age came forward as a witness? The Judge, putting on a grave air, asked her whether she knew the consequences of not telling the truth, and on replying that she would then go to a bad place, she was admitted to give evidence. Now, first of all, it was known that children had no idea of death; and, in the next place, the notion of a little girl of seven or eight years of age having in her mind anything like a conception of a future state of reward and punishment was so ridiculous that no man could possibly believe it His hon. and learned Friend said, in such cases the child was instructed by the chaplain. What was the child taught? She was taught words. They could not give a child of that age an idea of a state of future rewards and punishments. On that point various opinions had been held in all ages among different communities. He believed that it was generally known that in the Pentateuch there was no statement with respect to a future state of reward and punishment, and the oath taken by the Jews had nothing to do with the vengeance of God after death, they believing that a special vengeance would fall on the perjurer during life. Intelligent Christians did not believe in special interpositions of Providence, but were of opinion that the world was governed by general laws which might probably bring upon them evil consequences in this life on account of taking a false oath, and they also believed that a false oath would be followed by punishment hereafter. He had lately been reading a curious book in reference to the doings of Dr. Pusey. It stated that the doctor was lecturing a class of young ladies, and pointed out to his trembling listeners the dreadful consequences of withholding any part of the truth, or of telling a lie at confession, and illustrated the subject in this way. He said that he met one day in the streets of Oxford a man who said, "I have been burning in hell for one hour because I told you a lie in the confessional," The man suddenly disappeared, but Dr. Pusey called at his house, and found he had been dead an hour. That was an illustration of the idea entertained of the consequences of taking a false oath, 1296 and the hon. Baronet who proposed the present Bill did not desire to make any change in such a case, but only wanted to bring before the tribunals everything in the way of evidence, and not to shut out evidence by a general rule of law. What was the consequence to society of the existing rule? Why, if a man not believing in a future state of reward and punishment saw another receiving every possible injury, he was, though a truthful and honourable person perhaps, excluded from giving evidence; and, again, by declaring himself to be an unbeliever a man might relieve himself from the obligation and burden of being a juryman.
§ SIR JAMES FERGUSSON
said, he thought that the question ought to rest on the simple and honest feelings of the people of the country. He conceived that the hon. and learned Gentleman who had just sat down had stated grounds for supporting the Bill which must have given pain to many persons in that House, and which were opposed to the conscientious opinions of the majority of persons out of the House. The hon. and learned Member said that by the existing law false evidence was admitted, and true evidence rejected; but it should be borne in mind that it was impossible by any precaution entirely to guard against the admission of false evidence, and that all they could do was to take the highest standard of credibility. That was what the law did, and if in some instances it failed, it had at least taken every precaution which it was in its power to adopt. There was but one standard which possessed anything approaching to a true test, and that was belief in those doctrines which regulated in the highest sense honour and truth. The hon. and learned Member had stated that children could not form ideas as to a future state of rewards and punishments. In that opinion he could not agree. The doctrines inculcating an adherence to truthfulness were of the simplest and most elementary character, such as children could understand, while they were suited also to the comprehension of the wisest persons. The hon. and learned Member spoke of adherence to the national religion being required as a test of credibility, but belief in a future state was not confined to Churchmen; it was shared in by Dissenters and Jews. He had to apologize to the House for dealing with theological topics, but they had been introduced on the other side. The hon. and learned Gentleman spoke of the wrong 1297 to individuals and the wrong to society which was done by the present system; but the outrage which would be committed on the feelings of the great mass of the people by such a change as was proposed would be a greater mischief than any that would be redressed. If an individual unhappily occupied a peculiar position in regard to religious belief, he must bear the consequences. He hoped the House would pause before they swept from the statute book that valuable landmark of the national religion.
§ SIR FRANCIS GOLDSMID
said, he should support the second reading of the Bill. He would not dwell on the first clause, after the admission of the hon. and learned Attorney General that there were some defects in the law which that clause would remedy, an admission which he-(Sir Francis Goldsmid) should have thought a sufficient reason for reading the Bill a second time. But there was no doubt that the main question to be considered was that raised by the second clause, and was whether the present state of the law promoted the ascertainment of truth in courts of justice. If it did not—and he was of that opinion—he believed there was not anything in the conscience of the English people that would require the maintenance of a law which placed a barrier in the way of arriving at the truth. Before considering the main question, however, he would say, that whilst concurring in most of the arguments of the hon. and learned Member for Sheffield, he could not agree in his observation respecting the Pentateuch. He (Sir Francis Goldsmid) did not think that a fitting opportunity for biblical disputation or for the citation of texts, but would content himself with remarking that the best critics were of opinion that the Pentateuch, as well as other parts of the Old Testament, did contain references to a future state. With respect to the means to be adopted for ascertaining truth in legal investigations, it was in the present day admitted as a general rule, that the most effectual way of accomplishing that object was to let in any evidence that might be offered, whether somewhat more or somewhat less trustworthy, and to leave to the judge or jury who might have to decide the question of fact, the task of weighing its different degrees of credibility. In order, therefore, to justify that exception from the general rule which was now under consideration, it must be shown that the evidence which it shut out was not only 1298 somewhat less trustworthy than that which it admitted, but that the evidence excluded was so utterly undeserving of credence as not to be fit to be weighed or compared with that which was let in. And again, in order to show this, it must he shown, first, that infidels or persons of defective religions belief were necessarily disposed to give false testimony; and secondly, that all such persons were at present excluded from being witnesses. Now, he (Sir Francis Goldsmid) denied both of these propositions. It would not be contended that persons who did not believe in a future state must therefore think robbery or murder allowable. And if this were not asserted, could anything but mere prejudice lead to the assertion that they thought it perfectly permissible to bear false witness against their neighbours? The truth was, that although those who were strongly attached to revealed religion might rationally maintain, that had there been no revelation, the leading principles of morality would not be as clearly recognised as they are; yet now, at all events, these principles had come to form so completely a part of public opinion, had been so thoroughly incorporated with the human mind, that they were admitted by all, whether believing or not believing in the source from which they might originally have proceeded. There was therefore no solid ground for the opinion that because a man was an infidel, or of defective religious belief, he would be inclined to give false evidence. But secondly, even if such could be shown to be the case, all such persons were not now excluded The best portion of them were shut out the worst were admitted. If an infidel, not being interrogated on the voire dire, took without objection the oath which for him was a mere idle ceremony; or if, being so interrogated, he professed religious opinions which he did not entertain; he was received as a witness. If he was too conscientious to take either of these courses, he was excluded. It seemed to him (Sir Francis Goldsmid) that such a law could not tend to the satisfactory investigation of truth, and that the proposed change in it was desirable and indeed necessary. He might add that one of the most learned Judges on the bench and also a man of known piety—Vice Chancellor Page Wood—had advocated a measure similar to that before them.
said, he could not support the second reading of the Bill. If he had had any doubt as to the course 1299 he should adopt, the speech of the hon. and learned Member for Sheffield would have decided him. The hon. and learned Gentleman had spoken of a practising lawyer like molten iron cast into a mould and taking a set and stereotyped form, and the description was the more vivid because the hon. Gentleman had himself undergone the process. The hon. and learned Member had certainly not forgotten one rule of his profession, which was, in a bad case to abuse the witnesses, for he had plainly hinted that the hon. and learned Attorney General was incompetent to give an opinion on the subject. The argument as to a man being received as a witness who said he believed in a future state, but in reality did not, only went to show that under any circumstances it was impossible to avoid having false witnesses at some time. If the Bill was allowed to pass, the time of courts would be wasted by the introduction of long theological arguments as to how far the peculiarity of a man's religious belief affected his credibility. He believed that the inconvenience of such a practice would be much greater than any inconvenience that could arise under the existing law, which practically worked very well. He looked upon religious convictions, and a belief in a future state of rewards and punishments, to be the great and true standard that should be used, and he should therefore vote against the Bill.
§ MR. LOCKE
said, that there was no fear of prolix theological discussions in courts of law, because juries would readily make up their minds as to the credibility of witnesses with peculiar religious views. Indeed, the point had frequently been raised within his own experience. On his circuit a learned friend, now no more, who had been raised to the bench, invariably urged on the jury that they should make religious belief the test of credibility, and with that view contrasted the affirming Quaker with the swearing Church of England man. Hon. Gentlemen who opposed the Bill looked upon the question in an entirely wrong point of view. They seemed to think that it was a great benefit or a pleasure to a man to be summoned as a witness. As a general rule the duty of appearing as a witness was regarded as a very disagreeable one, and but for the subpoena, and the consequence that would follow non-attendance, many persons whose evidence was necessary to the right decision of a case would not appear. It was a benefit to a man to be a witness in his own case, 1300 and that privilege was only recently conferred on suitors. The question was one of utility—one of common sense—as to what the suitors of the country had a right to expect at the hands of the House. It was a question whether or not a man should be entitled to have all the evidence which he could obtain heard before the court. A man could not pick his witnesses to any particular transaction; he could not select them according to their religious belief, but must take them because of their knowledge of the matter in dispute. The same objections which were now urged against this Bill, were urged against the Bill which he had brought in, in 1861, to enable witnesses to make an affirmation in criminal cases, where, from alleged conscientious motives, they refused or were unwilling to be sworn, and thereby extending the provisions of the Common Law Procedure Act, which only applied to civil actions, to criminal proceedings also. That Bill, however, passed, and had been found to work most beneficially. An hon. and learned Member for an Irish Constituency had given that Bill his most decided opposition, and had used many of the arguments against it which had been heard that day. That hon. Member forgot, while using those arguments, that the law which he (Mr. Locke) was then endeavouring to pass for England was already the law in Ireland and had worked well. He was not aware that his learned Friend the Attorney General, among the different Acts which he had cited, had made any mention of the Act passed by Lord Denman for admitting the evidence of convicted felons. By that Act persons, who by the law of England were held to be infamous and therefore incapable of giving evidence, were admitted as witnesses; and he would appeal to hon. Members who were in the habit of taking part in the proceedings of criminal courts, whether they had not often seen convicted felons come straight from the gaol clad in the prison dress and enter the witness-box and give their testimony. This Bill of Lord Denman was passed on the ground of the necessity of admitting the testimony of those who had a knowledge of facts connected with the case, and this Bill was founded on the same principle, and surely it was absurd to contend that while they might receive the testimony of a man steeped in crime they might not do so in the case of the man whose character was unimpeached, merely because he had the truth and honesty to declare his want of 1301 religious belief. The Bill before them, proposed that every man should be allowed to be called as a witness subject to the penalty he would undergo if he committed perjury. The opposition to it was grounded on sentimental objections as to religious belief, in the face of the fact that even though life and death depended on the testimony of a person who had the honesty to admit he did not believe in a future state of rewards and punishments, his evidence as the law now stood was excluded. A plaintiff or defendant, prosecutor or prisoner, had a right to demand that every witness who possessed a knowledge of the facts of a case should be examined, and it was for the judge and jury to scrutinize and weigh his evidence. Before hon. Members could say that the evidence of a person who stated that he did not believe in a future state of rewards and punishments should be excluded, they ought to establish this proposition, that the evidence of those who professed a religious belief was always true, while the evidence of those who did not possess such belief was invariably false.
§ MR. INGHAM
said, he considered that no witness should be excluded from giving evidence who was capable of speaking to facts material to the investigation of a case. There was full opportunity in each instance to test the credibility and trustworthiness of each particular witness. He should therefore support the Bill.
§ MR. CONINGHAM
said, he for one did not regard speculative or abstract religious opinions as the true measure of a man's veracity, though it might of his intelligence. What was required was that a man should be restrained by moral convictions, which appeared to him to be altogether independent of speculative ideas on sacred matters. He believed that the proposed change in the law was much required, and he therefore hoped that the Bill would be read a second time.
§ SIR CHARLES DOUGLAS
observed that the second clause of the Bill, which permitted children and persons of defective religious belief to be examined, was the same as the law now in operation in India, so that the principle had already been recognised. The Attorney General had carefully omitted to notice the fact, that the words proposed were identical with those of the law in India. As the law now stood the Attorney General might be in the enjoyment of a vast estate in India, obtained by the evidence of a man of no 1302 religious belief, under the law we had sanctioned in India. Yet that man, whose evidence had so gained to the Attorney General great possessions, by whose truth these were rightfully adjudged, would be, if in this country, unable to save his learned Friend from the consequences of a malicious criminal charge, if he were the only witness the Attorney General could bring to assist in proving his innocence; and thus, on account of the defective religious belief of a witness whose evidence had gained an estate or saved a life in one part of the Queen's dominions, in another, truth and justice might be defeated by a malicious conspiracy. The only safety in the administration of justice was to admit all witnesses and take their evidence quantum valcat. He would mention a case which would show the necessity there existed for a change in the law. In November last a case was tried, and one of the defendant's witnesses—a member of the Affirmation Society—on coming into the box declined to take an oath, but expressed his readiness to speak the truth if he were allowed to do so. The Judge inquired under what obligation he would speak the truth, and the reply was the obligation of honour. The Judge said that that was not sufficient, and the witness added, that he believed if a man did not tell the truth, he violated his conscience. He was then asked whether he believed in a future state of rewards and punishments, and upon his replying in the negative, adding that he believed the punishment would be in this life, his evidence was rejected. Surely, the defendant in that case had a right to complain that the state of the law as it now existed worked an injustice to him in that instance. The evidence of a witness named Clark, who believed in God, was rejected because he did not believe in a future state of punishment; while the testimony of another who was sworn against his conscience was received. He put it to the House whether such a state of things ought to be suffered to continue, and called upon them to affirm the second reading of the Bill.
§ Question put, "That the word 'now ' stand part of the Question."
§ The House divided:—Ayes 96; Noes 142: Majority 46.
§ Words added.
§ Main Question, as amended, put, and agreed to:—Bill put off for six months.
§ [For Division List see APPENDIX.]