AFFIRMATIONS. (Hansard, 4 August 1840)

§ The Duke of Wellington
said, the noble Lord had stated it as a reason for agreeing to this bill, that several other bills of the same character had been passed. He (the Duke of Wellington) entreated their Lordships to pause, and recollect, that the foundation of all justice was truth, and that the mode of discovering truth had always been to administer an oath, in order that the witness might give his deposition under a high sanction. He hoped their Lordships would not proceed to adopt another of those bills which had been before their Lordships only a few days, and which was, in truth, nothing more than a way of enabling a witness, who thought proper to say he had conscientious scruples, to escape the solemnity of an oath. He admitted, that the inconvenience which the present state of the law produced fell rather on the community in general than the individuals, but, at the same time, he thought that by every one of those relaxations they shook the foundations of justice. This bill ought to be brought before them at a period of the Session when they could ascertain the opinions of more of the learned Members of that House than were now at hand, and also the opinion of the learned judges, if their Lordships would think it necessary to call for them. The bill, indeed, hardly went far enough, for if the principle were just, why not dispense with the previous examination altogether? But he would suggest that in any future bill it would be right to have some testimony as 1248 to the character of the person wishing not to take the oath, which would be a kind of substitute for the sanction departed from. In the mean time he should move that the bill be read a second time that day six months.

Lord Brougham
said, that the very provision required by his noble Friend opposite was to be found in this bill. The party who had scruples against taking an oath was required to go before a magistrate, and in case the justice were satisfied, on the testimony of one or wore credible witnesses, that he was a person of good character and a believer in the Christian religion, and conscientiously believed the taking of oaths to be unlawful, then he was to grant a certificate to that effect. There were some parts of the bill of which he did not altogether approve. He objected to any thing in the nature of a test, and he agreed with his noble Friend opposite, that it would be better to have the bill more extensive, and to place the recusants in general on the footing of the Quakers, Moravians, and others, dispensing with the previous examination. Heartily agreeing, however, in the principle of the measure, he should give his vote for the second reading. He was as much averse as any man could be to diminish the sanctity of the obligation to truth, on which all the administration of justice depended; but he thought this bill would leave it all the security which human institutions could confer. The experience of those who were best acquainted with courts of justice did not tend to show that those who took affirmations were less careful or scrupulous as to what they swore, or swore in a less trustworthy way, than those of their fellow citizens who continued to take oaths.

§ Lord Lyndhurst
had a great aversion to this bill. The question was, whether they should allow any person who chose to say he had a conscientious scruple to taking an oath to dispose of the lives and fortunes of his fellow-subjects without the sanction of that obligation. He was not at all disposed to adopt the principle without going into a minute inquiry as to the inconveniences of the law as it at present stood. The noble Lord who moved the bill said it was full of securities against the abuse of the principle. Any person at all acquainted with the administration of justice, would see that the pretended securities were a mere mockery. The man who objected to the oath was to go before a magis- 1249 trate, and call a witness to prove that he was a man of good character, and had conscientious scruples. That was entirely an ex parte proceeding; the magistrate would be ignorant of the parties, and would have no opportunity of sifting the evidence, so that this proceeding would be quite nugatory. If, then, the promoters of the bill thought a security necessary, and if on inquiry their Lordships found that it amounted to nothing, there was an end of the bill even on the showing of those who introduced it. The noble Lord had said, that the bill was drawn up by a learned judge. Of course, he could not suppose that any one of the learned judges could have been concerned in drawing up such a bill as this, so that that assertion he took for a mere make weight. But this was not all. The man who had a scruple against taking an oath, must, of course, have a similar scruple against calling any person into a court of justice to take an oath for him. The man, therefore, was to call another into court to do that which he considered in his own conscience ought not to be done. Such was the extravagant absurdity of this bill. Yet their Lordships were to suppose that one of the learned judges had drawn it. Again, how were the conscientious scruples of the recusant to be investigated? All that the witness could say was, that the man said he had those scruples, which meant nothing. But after the witness was examined, it was not imperative on the justice to grant a certificate. If he refused it, the consequence would be that every one would set down the man who had applied for it, as one who was not considered a man of good character or a Christian. Suppose that this unhappy man were afterwards called into a court of justice to be examined, the fact of this refusal would be conclusive against his evidence. Again, every one knew, that when an oath was prescribed in an act to be taken, it must be repeated verbatim et literatim, without deviation. Yet this form of affirmation given in the bill was, "I affirm and declare, &c." There was only one other instance of an oath in an act of Parliament containing an "&c." which had been made the subject of ridicule against the nation by historians, yet this bill was ascribed by the noble Baron to a judge of great learning, intelligence, and acuteness, who was incapable of committing such 1250 absurdities. With regard to the general question, he was unwilling to discuss it on such a bill as this, but when a less objectionable measure was introduced, he thought it might be made the subject of grave and serious consideration by a Committee up stairs.

Lord Brougham
Although he never said, that Mr. Baron Alderson drew this bill, he certainly considered, that it might have been drawn by any judge, without impeachment to his learning or accuracy. As to the "&c." what was it? Nothing at all. It simply meant in the bill, "I affirm and declare as is here set forth," or "as follows." It was common enough in other Acts, as for instance, "justices sitting for, &c." meant "justices sitting for such a town or county." The only other observation of his noble and learned Friend worthy of notice was, that as to the person who objected to take an oath calling on another person to take one for him, which certainly had, at first sight, some plausibility. But why should not the objector call upon another man to take the oath, if that man did not share in its conscientious scruples, and had no repugnance to do so?

§ The Earl of Devon
objected to introduce into the practice of our criminal proceedings evidence not on oath, unless under peculiar circumstances indeed, and in cases established after a full and deliberate inquiry. His own experience had taught him, that men would refuse to swear a falsehood which they would affirm over and over again. In those cases where relief had been afforded the class of persons were known, and a test could be applied to their religious opinions. In this case the door was opened wider, without evidence to show the necessity for it. He was always ready to bear his testimony to the scrupulous correctness of Quakers in giving their testimony; but still the principle of our criminal law was to require an oath.

§ Lord Monteagle
said, his noble Friend must recollect, that they had the authority of the Legislature in favour of the bill. The Legislature had passed former bills of this kind. If the object were the discovery of truth, and if it were said, that an oath was an aid to the discovery, he (Lord Monteagle) said, that an oath against conscience was an impediment to the discovery of truth. If it were otherwise, the Legislature had done wrong, for it had abolished hundreds of thousands of oaths 1251 on the very ground, that an oath misapplied was an impediment to, and no test of, truth.