AFFIRMATIONS INSTEAD OF OATHS. (Hansard, 12 July 1838)

§ The Duke of Wellington
feared, that unless great circumspection were used, this bill would have the effect of encouraging a species of inferior evidence in judicial cases. He suggested, that those who meant to avail themselves of the provisions of the bill, should previously procure a certificate setting forth their scruples, which certificate should be granted without expense, and should be renewed annually.

§ Lord Denman
had no objection to adopt the suggestion of the noble Duke.

§ Lord Ashburton
said, it would be better, in his opinion, if a general measure, extending to all classes, were passed; and that the particular privileges now granted to certain sects only, should be removed. As the law now stood, and would stand under this bill, one mode of affirmation was allowed to one body, and another to a different body. He thought that provi- 146 sion should be made in this bill calling on individuals to make known their sentiments on the subject of taking oaths, before the occasion arose when they might wish, in a court of justice, to make a declaration. Individuals ought not to be allowed to take that course on the spur of the moment.

Lord Ellenborough
agreed in the propriety of what had fallen from the noble Lord. If some such precaution were not adopted, alibi-men would be found ready on all occasions to make these declarations, and the effect would be most injurious to the interests of justice.

The Earl of Haddington
objected to the provisions of the bill being extended to Scotland.

The Earl of Wicklow
had attended the Committee on this bill, which certainly, compared with what it was, had been considerably improved. If, however, it were a good measure for this country, he could not see why the noble Earl should wish to exempt Scotland from its operation. He was willing, by a measure of this nature, to give relief to that extent, but to that extent only, which appeared to be necessary. But the present measure went far beyond that; because it went to give to every person, no matter of what religious creed, who preferred an affirmation to an oath, the opportunity of taking the former. That, he maintained, was giving relief to a much greater extent than the evil required. Although he admitted, that the bill had been much improved in Committee, still, if a vote were taken on the subject, he should vote against it.

The Earl of Haddington
said, if this measure were found necessary for Scotland, he should not object to it. But he thought it would be extremely hard to pass it, when no communication had been received from Scotland on the subject.

§ Lord Ashburton
said, that he was not aware that this bill had been called for by any of the judges, nor were their Lordships acquainted with the opinions of magistrates, or of chairmen of quarter sessions on the subject. Considering how little their Lordships knew of it, and the late period at which it had been presented to their attention, he thought, that no great inconvenience would follow if it were deferred till next Session; and he therefore moved, that it be committed that day six months.

§ Lord Denman
said, that if their Lordships were prepared to say, that men should not be allowed to give evidence on account of their religious opinions, they would accede to the proposition of the noble Lord; but he should certainly take the sense of the House on the subject. He proposed, that they should now go into Committee, and, after any alterations which might be deemed necessary had been made in it, that, on the third reading, their Lordships should express their opinion on the merits of the measure as a whole. He entreated their Lordships to deal with the bill upon the general principles which it contained, and not let it be thrown out in this unexpected manner, after the exertions he had made, at great inconvenience to himself, to remove all the objections which had been urged against the measure. He asked their Lordships to pass this bill, as the means of avoiding the suppression of truth and the exclusion of evidence which could not otherwise be obtained. The parties for whose relief the bill was designed, were prepared to give evidence, if they might be allowed to do so, without a violation of their conscientious scruples. The experiment had been already made in the case of Quakers, and others, with infinite advantage. The Quakers, the Moravians, and the Separatists, were now at liberty to come into a court of justice, and say, "I am a Quaker, or a Moravian, or a Separatist," and to give their evidence without an oath. It was supposed, that persons would not be afraid to affirm what they would be afraid to swear; but he would maintain, that no man that would deceive as a witness on affirmation, would hesitate to deceive on oath. He had pointed out a great public evil, and he had also pointed out a simple and general remedy. Under these circumstances, he objected to further delay; and he should persevere therefore with his motion, that the bill be now committed.

§ Lord Ashburton
said, that if it would not be inconvenient to the noble and learned Lord to attend on a future occasion, as he collected from what the noble and learned Lord had said, it would certainly be convenient for the House to see the bill in its most perfect shape, and then to express an opinion upon it. He would not enter into an argument upon the general question, but he must say, that if any alteration were to be made in the pre- 148 sent law at all, he would much rather do away with oaths altogether, and substitute some solemn declaration. He did not see, however, how this question of oaths, being a burthen upon men's consciences, could be treated, except upon the most extensive grounds. It affected the highest as well as the lowest; it touched the coronation oath, and the oath of allegiance to the Sovereign. However, with their Lordships' permission, he would withdraw his amendment, and let the bill pass through Committee.

§ The Duke of Wellington
said, that it was perfectly true, that on a former occasion he had expressed an opinion that a bill of this nature might be, with propriety, applied to certain persons who had been Quakers, Moravians, or Separatists, but who had separated themselves from those classes, while they still had this feeling with regard to an oath. But he never thought of extending the privilege to all mankind. He must remark, that the judges of the land had not given an opinion in favour of this bill, and the judges, who were in the constant habit of hearing evidence, ought to be the persons, above all others, who were competent to form an opinion upon its merits. He would certainly vote against the bill, unless it were known that it was the opinion of the judges of the land that the bill ought to pass; because, on such a subject, his opinion would be governed by theirs. A noble Lord, connected with Scotland, had expressed a desire to have the opinion of the judges of Scotland on the subject; and another noble Lord, connected with Ireland, had stated a wish to be made acquainted with the sentiments of the Irish judges on this question. It was, indeed, a question connected with the administration of justice, upon which the judges were more competent to form an opinion than any other persons. For his own part he would not, before he knew the opinion of the judges of this country, give his assent to a measure which might deprive justice of its main foundation—its truth.

§ Lord Denman
was extremely sorry to trouble their Lordships so often, but he had communicated on the subject of his bill with all the noble Lords in that House who filled, or who had filled, judicial situations; and with one exception, Lord Wynford, who had some doubts, they were all favourable to the principle of the measure. He had not entirely neglected, therefore, 149 to ascertain what were the opinions of those who might be supposed competent to form a correct judgment on this question. If, however, the noble Duke contended that this bill ought to be submitted to the judges at large, and that its fate should rest upon their decision, that, he apprehended, was a novelty in the practice of legislation. For his own part, he contended that their Lordships, who exercised a presiding care over justice—and he called upon them to do so as a matter of duty—were bound to decide whether the persons to whom this bill related, should or should not, be kept out of the pale of the law. He did not exactly know in what situation the House now stood. He had understood the noble Lord to say, that he would withdraw his motion; but the noble Duke said, that he would oppose the bill. Having, however, taken up the bill from a sense of public duty, he felt that it was a duty to the public not to abandon it; and he should therefore persevere in his motion, that the bill be now committed.

Lord Brougham
submitted, that the House was bound, out of respect to the Select Committee to whom the bill had been referred, to allow the bill to be considered in a Committee of the whole House. This course would be much the more convenient, and would not, in the least, damage the opposition to the bill. He should therefore suggest, that without further delay, the bill should go through Committee. Perhaps something would be done in Committee, which might remove the objections now entertained to the bill.

The Earl of Haddington
rose to move, as an amendment on clause 1,—first, that its provisions should not extend to Scotland. In that country, an oath was administered in the most solemn manner. It was administered by the judge who presided, amid profound silence, and each individual, holding up his right hand to heaven, swore by the Almighty himself, and as he should answer to God at the great day of judgment. The people of that country had a most profound veneration for an oath. He was, however, sorry to learn that false swearing had of late become more common in Scotland than it had been; and he was apprehensive that the affirmation would be taken advantage of by all persons in Scotland who were unwilling or immoral witnesses, who would 150 be afraid to take that oath, but had not that moral feeling which told them that the essence of an oath lay in its truth.