§ Lord Denman
spoke as follows:* My Lords, I have the honour to call your attention to a measure, which has appeared to me to be necessary, for the removal of a defect of no small magnitude in the administration of justice. On several occasions, when such defects have been brought to my knowledge, I have considered it, in some degree, as a duty attached to the high situation which I fill to attempt the application of a remedy. I have had the good fortune, with the assistance of your Lordship, to pass some measures, of a simple structure and of no pretensions, which have proved highly beneficial to the interests of suitors and the public. The grievance to which I now advert is the exclusion of truth—an inevitable consequence of the rejection of such witnesses as are convinced that they are forbidden by the word of God to take an oath. The remedy which is suggested is efficient and complete—it has the sanction of experience as well as that of reason. This subject was first brought practically to my notice about four years ago, when two remarkable trials took place. A presbyterian gentleman was robbed and assaulted in Ireland, but the learned judges held his evidence inadmissible, because his conscience did not allow him to take the oath in the form which prevails in our courts. About the same time, at Liverpool, a similar outrage having been committed on a person who had formerly been a quaker, but had withdrawn from that society, his evidence was also rejected. I endeavoured to prevent the recurrence of this evil by a general measure, which your Lordships did not approve: but the error committed by the judges of Ireland was corrected by a declaratory act; and the privilege of affirming was extended by a new act to such as had left the Society of Friends. On both occasions, however, the notorious criminal escaped from the hands of justice. Nothing can appear more superfluous than to descant on the importance of freely admitting the truth to be disclosed in courts of justice; it is the first object of their institution. The noble Duke (the Duke of Wellington) has frequently expressed his strong opinion*Form a corrected Report.618 upon this point, which indeed is too obvious to require or derive illustration from any authority. Yet it may not be improper to drop the general phrases to which all assent, without much consideration of their importance, and to remind your Lordships, in a few words, of the consequences that may daily arise from the exclusion of evidence from judicial inquiries. By the exclusion of evidence, the justest debt may be lost to the creditor; if it has been paid, the debtor may be deprived of the proof of payment, and compelled to pay it twice: in the ordinary occurrences of life, the wrong-doer may always triumph over the oppressed; the property of one man may be wrested from his possession and transferred to a stranger; a fraudulent pretender may obtain a seat in your Lordship's House, which he knows to belong to another, and thus obtain the high privilege of enacting the laws of the land. In the department of Criminal Law the evil is far greater. I have adverted to the escape of two criminals, through a supposed defect of the law in one case and a real defect in another, swelling the long list of examples of impunity, which give a fatal encouragement to crime. That the great mass of crime is growing amongst us appears too probable, since the number of prosecutions and convictions is increased, and the causes of crime appear to be multiplied. The ordinary stimulants have been for a long season unusually active, and some may be found almost peculiar to the age in which we live. Attentive observers have thought that a portion of the literature of the day has assumed an unfortunate character, exciting the youthful mind, by tales and dramatic representations, to sentiments of the most vicious and debasing tendency, throwing a veil of romance over meanness and cruelty, and exhibiting them in an impossible alliance with heroic courage, generosity and friendship. Many think that the love of notoriety—that universal passion—has been so fostered and directed as to exercise a baneful influence on public morality, operating on two classes of the community most widely removed from each other, but producing through both the same injurious effects. Persons raised above their fellows by rank, wealth and education, and still more by feelings of religion and humanity, carried to excess (if that be possible), have been supposed to indulge those 619 feelings, and at the same time gratify the appetite for notoriety They have made themselves conspicuous by ill-placed bounty towards the plunderer and the assassin; not content with exhorting them to penitence and prayer, and consoling them with a humble hope for mercy, they have surrounded them with the enjoyments of this world, and invested them with distinction and interest in the eyes of their fellow-creatures, which no other position could have earned for them. This patronage of criminals has displayed something like an indifference to crime; and the vilest and most abject have avowed that they have thus been tempted into outrages which have filled the public mind with horror and indignation. Whatever causes may have aggravated the amount of crime, the fact should awaken our efforts to repress it; but the present law cripples our means of resistance by the needless exclusion of evidence. Allow me to ask, what would your Lordships have felt—how would the public mind have been affected—if any of the wretches who have lately polluted the courts had departed without punishment through this defect? What, if a necessary witness to identify the open traitor, or to trace the proofs against the midnight murderer, had been reduced to silence by his own religious scruples, and the rigid exaction of an oath by the law? Even worse consequences might follow, in proportion as the erroneous conviction is more to be deprecated, than the acquittal of guilt. Conspiracies to accuse falsely may be well laid; untoward circumstances may amount to proof; while the facts by which innocence can be established may be known to none but such as hold an oath unlawful. The present law shuts out the truth so tendered, and knowingly suffers the innocent man to be branded as a felon. When such a combination of facts occurs, where all the admitted evidence condemns, the verdict must be founded upon it, and the sentence must follow. There is indeed an appeal to the Secretary of State; and if a clear and satisfactory exculpation were laid before that high functionary, though proceeding from non-jurors, he would undoubtedly remit the penalty and direct a pardon. But the means and opportunity of making out such a proof must ever be uncertain at the best; prejudice and clamour may drown the voice of truth; the feelings of 620 the multitude may be inflamed by the public trial to a degree which would render all secret interference dangerous. Or if otherwise, why should the innocent man owe to favour what justice ought to secure for him? Why should he be pardoned who ought never to have been convicted? Why should the jury be compelled to bring in a false verdict, and the judge to pronounce an unmerited sentence? Why should justice be rendered unattainable by any other means than the defeat and exposure of the law? I am now to inform your Lordships that a large number of our fellow-subjects is in fact thus disqualified and excluded. They assign a literal meaning to the passage in the Gospel, and decline to take the oath which the law would impose. The Baptists are a well-known and a very numerous sect. The whole body consists of above 100,000 in England, and 5,000 in Scotland. I have this day laid on your Lordships' table a petition from seventy-nine churches of the Northern Association, representing a community which exceeds 50,000 persons. My noble Friend (the Marquess of Lansdowne) lately presented a similar petition from an assembly of thirty churches in the south. Associations of less extent, and particular congregations, have also appealed to your Lordships' enlightened sense of justice and expediency. I have been in communication with many pastors of these numerous flocks, who assure me that, while they all desire to see this yoke removed, at least one in ten of the whole sect deems oaths unlawful, and would rather submit to any suffering than violate this religious duty. The sect of Independents has for many years maintained a respectable position in this country; a large proportion of them entertain the same opinion. Several members of other religious bodies, Christians of various denominations, some who adhere to all the other doctrines of the Church of England, and even some Roman Catholics, are conscientiously convinced that they ought not to take an oath, in defiance of what they deem a direct prohibition uttered by Divine Authority. I would that these petitioners could state their own case, their opinions and their wishes personally to your Lordships, you would be convinced of their sincerity at least, and you would not see in their creed, however erroneous it should appear to you, the slightest reason for keeping them out of the protec- 621 tion of the law. They are anxious to co-operate with their fellow-subjects in bearing all the burdens imposed upon them by the constitution. Their interests are affected in various ways:—young men, qualified by talent and study for the learned professions, are deterred by the preliminary oaths; clerks and inferior servants, cannot find employment, because they cannot depose upon oath to facts of ordinary occurrence. Some gentlemen of high, character have resigned important offices of considerable value, because they involved the administration of oaths. Your Lordships, will naturally inquire what corrective is now applied by the law to the unquestionable evils which it produces. Before that corrective is described, the tale of grievance is but half told. The corrective is an intolerable aggravation. This is the substance of the controversy which arises in out courts:—The person who attends his summons as a witness is ready to depose to the facts in his knowledge; he is told that he cannot be allowed to do so, unless be swears to speak the truth. Conscious of this duty, and prepared to discharge it, he still remonstrates against the oath; when peremptorily ordered to lay his band on the Gospel and swear, be answers that he has meditated on that sacred volume from his youth up, has yielded entire deference to its authority, and laboured to conform, his life to its precepts, among which he finds none more direct and binding than, the simple injunction, "Swear not at all!" Nothing can be less important than my own sentiments on any matter of this kind; but I beg your Lordships to understand that I do not share this scruple, nor bring forward ray proposal from any personal motive whatever. I have no wish to maintain the correctness of the non-juror's opinion beyond this:—that it is by no means too absurd to be sincere; that it neither bears the character of wild fanaticism that impeaches the understanding, nor is so obviously contradictory to reason as to draw motives into suspicion. The rules of biblical criticism may fully justify those who believe oaths to be lawful; but the adherence to the plain words of the New Testament, however satisfactorily shown to originate in error, is an error of a very different kind from that of engrafting something arbitrary and extraneous upon them. The non-juror is all this time standing before the tribunal. He 622 has given his plain reason for refusing to take the oath, and persists in his refusal. What duty does the law impose on the presiding magistrate? Hitherto, my Lords, I have pleaded for the public against the exclusion of testimony; I have pleaded for individuals who are virtually outlawed by their exclusion; I now plead for the magistrate, and beseech your Lordships to attend to the situation in which he is placed. There is but one duty imposed upon him by the law in this crisis—the duty of menace and coercion. He must warn the reluctant Christian that much temporal annoyance awaits him, if he perseveres in what he deems his duty to God. If the warning succeed, if the courage give way under the threat, his compliance degrades him in his own estimation and in the face of the world; by consenting to become a witness, he proves himself unworthy of credit. If he still refuse, the magistrate has no alternative. However he may respect the conscientious scruple, though from, persona acquaintance he may know its sincerity, he is compelled to refuse the proffered testimony, in which he would fully confide, and for want of which his judicial power is paralysed; and he must consign his fellow-subject to a dungeon for the crime of too faithful an obedience to the declared will of the Saviour of mankind. Such scenes have recently been presented, reflecting little honour on religion or on justice. The unseemly spectacle will be the more strange, if it happen that the non-juror who is hurried into custody should at the same moment hear testimony given on affirmation by one who was formerly a Quaker;—if he should see both a Quaker and a Separatist actually seated in the jury-box, to decide on the life of a fellow-creature without an oath. To them the law has granted this privilege merely because they hold the faith for which their fellow Christian is proscribed and punished. The only principle on which this severity is now inflicted, is that of making the non-juror an example to others in the like case offending. The State has formed one opinion on a religious point, and is resolved that none of its subjects shall hold a different one. Let us not disguise from ourselves that here the spirit of persecution is in full operation, but let us consider what hope of success the attempt holds out. In an interesting volume, (for which I am in- 623 debted to the kindness of its author, Mr. Chambers), "A Collection of American Criminal Trials," I have lately read a narrative of proceedings against the Quakers in the middle of the seventeenth century, in the colony of Massachusetts. Many suffered death for their opinions, and those opinions were but the more widely difused. The colony of Rhode Island pursued the opposite course. There they were left unmolested, and the heresy died away. In this country, about the same period, the Quakers underwent severe sufferings, and one of the greatest enormities ascribed to them was, the tenet that oaths were unlawful. For acting upon it, they were exposed not only to fine and imprisonment, but might be transported for life. We learn, from 7th William 3rd, thatDivers Dissenters, called Quakers, refusing to take an oath in courts of justice and other places, are frequently imprisoned, and their estates sequestered by process of contempt issuing out of such courts, to the ruin of themselves and their families.But was their conversion effected, or their scruples overcome? Quite the contrary. They persisted in their refusal to swear, and Parliament, which had visited them with punishment so dreadful, now gave their affirmation the force of an oath, and attached the same consequences to its falsehood. The indulgence was at first qualified, and confined to evidence in civil causes; but it has gradually been extended to all cases whatever, and by the present law they are even permitted to perform the office of jurymen without that ceremony from which juries derive their name. The Moravians cannot with propriety be called Dissenters. The act describes them as an ancient episcopal church. The belief that oaths are prohibited is not an article of their faith, but an opinion held by many members of their body. The privilege of affirming, instead of swearing, has been granted to them all, and, at a subsequent period, to persons denominated Separatists. Emboldened by an experiment which is universally allowed to have been followed by complete success, I commend this general measure to the favour of your Lordships. Instead of exclusion, persecution, and measures of relief, partial, occasional and imperfect, I respectfully entreat you to withhold from none the right of disclosing the truth, for the protection of themselves 624 and the community—a right which has been granted to others on the same principle, and is not even suspected of having ever been abused. I am aware, my Lords, that strong objections are felt, and by persons of high authority, to my proposal. I have felt an earnest wish to understand and appreciate them; but what was urged on former occasions I have examined with all the attention in my power, and I frankly avow that my difficulty has been to find either reason or argument to contend with. Some persons really imagine that the imposition of an oath is all-sufficient for obtaining truth; these are few and inexperienced indeed; but even if their dream was true, it ought not to prevent us from obtaining the truth, wherever and on whatever terms it can be secured. Some also have assumed that a measure permitting oaths to be dispensed with, would lead to their abolition. I ask why this should be? It is neither the object, nor the natural effect of the measure. The great bulk of those who come forward as witnesses come forward to speak the truth. There seems to be no reason for their refusing to give it all the credit which the most solemn sanction can impart. I never heard that the Quaker infects his neighbour with aversion to an oath, or the love of affirming in preference. The supposition rests on no reason that I can discover, when the witness is honest and desires to speak the truth. That many are of a very different character, no man conversant with our courts will deny. It is well known that witnesses may be hired to swear anything; and it is objected that those who are relieved from the necessity of swearing will be still more ready to deceive. But the first proposition answers the second. If the suborner can be sure of purchasing a false oath, he need not look out for a false affirmation. He would only expose himself to greater danger of failure and disgrace. The penal sanctions of the law are alone efficient to deter men without principle from falsehood; such may, indeed, be found among affirmants, as they constantly are among swearers, but the imprudence of raising an additional argument against their being believed by a departure from the ordinary forms, will guarantee the public against the attempt. The next form of objection has always struck me as a sarcasm against religion itself. Many (it is said) will state a falsehood by way of 625 affirmation, whom the terror of an oath might retain within the bounds of truth. For my part, well convinced that the love of truth itself is the natural fruit of religious feelings, I am slow to believe that a sincere reverence to the Almighty can be found in company with the contempt of truth, and indifference to the welfare of his creatures. A scene occurs, not seldom, in judicial proceedings, which may have given birth to this opinion. A witness, who appears to be misrepresenting facts, is reminded of his oath, and falters; he is asked whether he will swear what he has stated, and he instantly retracts the assertion. Hence, it is inferred that the form and ceremonial of an oath are necessary to command and control him, where mere affirmation would fail. Those who have thus, with much self-gratulation, brought back a witness to a sense of his duty, ought, however, to bear in mind that their appeal is not made to the conscience only, or solely on religious grounds. It is a warning of the temporal, as well as the eternal consequences of perjury. It savours of the jail, of transportation, of the pillory, which, though abolished, is not, perhaps, wholly forgotten. But there is no doubt that the religious principle may, also, be called into action by a solemn adjuration. Suppose the witness had promised, in the impressive form now employed by Quakers, and copied in this Bill, would not the effect on a religious mind be equally strong? Would a real Christian be more affected by the name of an oath than by the admonition that he had declared his inability to take one, on account of the prohibition of Christ himself, but that he had solemnly promised to affirm the truth in the presence of the Almighty? We cannot doubt it, unless we persuade ourselves, with as little reason as charity, that all who profess the scruple regarding oaths are hypocrites, who practise a fraud that they may utter falsehood with impunity. If there are really those who seriously believe that they can elude the Divine Vengeance by false affirmation, if made without the ceremony of an oath, a little legerdemain will gain their object, though they may pretend to perform it with the gravest decorum. My noble and learned Friend, whose hostility to this measure I have so much reason to fear, (Lord Wynford), anticipates me in the mention of a trick often suspected, when the witness imprints the kiss on his thumb instead of the book. If he 626 has executed this manœuvre without detection, your threats will not shake his nerves; he has not sealed the bond, and cannot incur the penalty; or he will find some other salvo for his conscience—a mental reservation, or a plausible exception for this single case, and the resolution to make speedy atonement for his sin, by some acceptable service. On minds thus half-witted and unprincipled, religion has no real hold; the true method with them is, not to yield to their contemptible self-delusions, but to give them better instructions on their duty towards God and their fellow creatures. Their waywardness, their ignorant prejudice, is only less absurd than it would be to shape our legislation by deference to them, and, on their account, to refuse to thousands of honourable and truly religious men the relief to which they are entitled. The objection comes round—"How can we know that the witness really feels the scruple? We have only his own word for it." The answer is, that you have no other knowledge of any opinion entertained by any man. That he who, with his head covered, swears on the Old Testament, is a Jew—that he who calls for the Koran is a follower of Mahomet—nay, that a member of the Church of England is a Protestant, or even a Christian, you know from nothing but their own assertions or conduct. The security against this species of deception is, that no sane man can have a rational motive for stating an untruth upon the subject. If bent on fraud and falsehood, how easy to claim the privilege of a Quaker, a Moravian, a seceder from the Society of Friends, or a Separatist. You are already at the mercy of all who choose to give themselves these descriptives; but, with the sanction of penal consequences before their eyes—the fear of degradation and exposure in society—no one is found to run the risk attending this preliminary falsehood. An abuse of a different kind might be apprehended. Irksome and injurious as it is to classes of men to be excluded, by conscientious opinions, from giving evidence, many in. dividuals are interested in avoiding that duty. In almost every case, there are some who, from fear or interest, wish to conceal their knowledge, to screen the culprit, or withhold their testimony from those unjustly accused. They may affect the scruple for the very purpose of being rejected, and leave the Court under false colours. On some former occasions, an 627 attempt has been made to disarm opposition to, measures like the present, by granting the privilege to those only who shall have registered their names at same public office some, time before they come forward as, witnesses. This would provide security against an abuse apprehended by some—the false, assumption of scruples, merely for a particular trial. Convinced as I an* that there is no such danger, I am no proper person to devise any security against it. But if you; Lordships should deem it prudent and advisable, I would give the most respectful attention to any proposal of that kind, which could be fully discussed in committee. Those whose petitions I have presented would accept, with gratitude, the boon I ask for them, even if accompanied with such a condition, though, perhaps, the public advantage of the measure would be rendered less complete. In conclusion, my Lords, deeply convinced that I have brought to your knowledge an evil of considerable and; Probably, of increasing magnitude, and have suggested a safe and a perfect remedy for it, I have the honour to propose that this bill be now read for the second time.
The Earl of Wicklow
opposed the measure. The grievances, complained of were extremely, limited in number, and the eases of hardship few and in a great degree imaginary. The noble Lord bad not shown One single case of injury to the administration of justice. If the bill Passed what would be the consequence? Why, one half the religious communities would have objections to an oath. No sooner would it appear that the laws gave exemption to, certain classes of religionists, than multitudes of others would press forward to obtain the same boon. He would infinitely rather vote for a bill for the abolition of oaths altogether than for this bill; for he had an insuperable objection to establishing two modes of evidence, one of which in public estimation would always be regarded as less binding than the other.
The Bishop of London said, the question was one respecting which he for one felt very considerable difficulty. He knew not whether he could make up his mind to give a vote on either side. The bill was Founded on the scruples of a very respectable body 0f men—scruples which, though he did, not concur in them, were still deserving the consideration of their, Lord- 628 ships. He bad no doubt that it was permitted by the Christian religion to take an oath on occasions of magnitude, yet he could readily believe from the brevity with which our divine Lord's precept was delivered, that other persons might entertain an opposite opinion on the point. The cases of hardship were not so few or so imaginary as the noble Earl thought. Amongst others there was a very remark-able instance of a highly respectable member of that learned profession in which the noble and learned Lord held so high a station, who had given up a lucrative employment rather than do that which he thought was forbidden by our Divine Lord. But he thought the question was too important and comprehensive, to be dealt with in what he must call thus summary way, for he doubted whether with the materials they possessed they were in a situation to give the subject such a full discussion as it deserved. Then their Lordships would do well to consider that if they passed this bill in favour of certain persons, who were undefined, it would lead virtually to the abolition of oaths in courts of justice. Now, oaths, hitherto had been the great bulwark and security of truth. The noble and learned Lord said that the measure might be passed with perfect safety, but the noble and learned Lord did not profess to represent the opinions, of the other learned persons who, like himself, were engaged in the administration of the law, and had opportunities of forming opinions on this point, and he should like very much to hear their opinions, to guide him in his vote. He should be glad if some method could be found by which their Lordships might arrive at those opinions. He was not, therefore, prepared to vote with the noble and learned Lord, though he thought the case was one which called for a remedy, and which must have a remedy before long. He thought the whole question of oaths was one of the most serious and solemn importance, and in his judgment it had, not received the consideration which it deserved. Their Lordships must permit him to say, that wherever, it could be made out that an oath could be dispensed with it was their duty to dispense with it. A very great body of the oaths now in use, particularly the oaths relating to real property, were a disgrace to the country. The careless and irreverent manner in which oaths were administered in courts of justice, not excepting the 629 highest court, their Lordships' House, were to his feelings most objectionable. He must repeat, he thought the whole subject was well deserving of the consideration of the Legislature.
said, he bad listened with great pleasure to some of the observations, of the right rev. Prelate. He could corroborate the statement that there were many conscientious Dissenters who entertained scruples as to taking an oath, and there were others who entertained the same scruples who did not belong to any particular sect: might there not be also some who were members of the Established Church? He knew himself of one, who was a highly respectable man, and he had himself presented a petition from persons of the Roman Catholic persuasion in favour of the relief given by this bill. Beyond all controversy, there was a large number of sincere. Christians who did entertain these scruples; and if so, was it fit and reasonable that, through such a cause,, persons should lie in gaol, and offenders escape with impunity? It might be said that the punishment fell on the persons who entertained such absurd scruples; but plaintiffs in civil cases might endure wrong, and in criminal cases the innocent might suffer and the guilty escape. The Legislature had given relief successively, to Quakers, Moravians, and Separatists; as soon as a sect appeared relief was afforded to it; yet here was a large body of Christians not constituting a sect, feeling the same scruples, who were unrelieved. Why not consider all non-jurors as a sect and legislate for them as well as for Quakers, Moravians, and Separatists? Why was the community not to have the same protection of their persons and property in, all cases? His firm persuasion was, that if the bill passed it would seldom be called into operation. He was not one to desire to see oaths abolished; he wished only to give a proper indulgence to religious scruples. He hoped that the bill would be read a second time and suffered to go into committee.
§ The Earl of Galloway
had no doubt that the limitation of the number of oaths would tend greatly to advance the notion of their sanctity in the eyes of the public But, notwithstanding what had fallen from the noble and learned Lord, he was not disposed to give his vote in favour of the second reading of this bill. He did not consider that the subject had yet under- 630 gone sufficient discussion. He doubted whether persons who had no conscientious scruples could not avail themselves of such an act to screen offenders from punishment. Till his mind was satisfied that there was a large number of individuals in this condition, or more conclusive, arguments were offered, however desirous he might be to relieve persons from conscientious scruples, he could not agree to this bill.
§ Lord Abinger
said, the topics urged in favour of this measure were very popular; it appeared to be for the purpose of relieving conscientious men from conscientious scruples; but there was another view of the question, which it was necessary to consider. If persons, professing to have religious scruples, had an opportunity of giving evidence without the sanction of an oath, there might be persons who, on the pretext of such scruples, would decline taking an oath. If any sect should arise entertaining such a scruple, he should not object to granting relief to them, as in the case of Quakers and Moravians; but there was no evidence that any body of men existed who had such scruples. After fifty years' experience in courts of justice he had only met with one such case, and that had been the day before yesterday, when, for the first time after a long forensic practice, a witness (a woman) objected to taking an oath. She stated that she was a Baptist; but upon his telling her that the taking of a judicial oath was not contrary to the Scriptures, she took the oath. The evil to be feared was, that persons would pretend to have tender consciences on this point. There had been half-a-dozen instances of persons who had given evidence before the House of Commons, and were afterwards examined upon oath in this House, and who, when questioned as to the difference between their testimony here and that given before the other House, have said, "Why, at that time we were pot upon our oaths." Not only religious persons but others had a conscientious feeling as to the sacred obligation of an oath. A prosecution for perjury was but little regarded—it seldom succeeded. His impression was, that an oath is considered as. a solemn sanction, and was generally observed. He had a great respect for the sect of Quakers, but he could not help saying that of all the witnesses who came into a court of justice, Quakers 631 were the most disposed to fence with questions; he found that they seldom gave a direct answer to any question, and especially if the individual were a skilful man, he fenced with the question in a particular manner. He meant not to speak disrespectfully of Quakers, he was only describing a fact. With the experience he had of the abolition of oaths in the case of Quakers, he was not disposed to extend it. Oaths were in all countries a part of a system for administering justice; in all countries, there was the sanction of an appeal to heaven. It was said that a man who would not tell truth would have no scruple to take an oath, and violate it; but it was much more probable that such a man would avail himself of this bill, and profess to have religious scruples. Was there a sufficient body of Christians professing such scruples to render it necessary to pass such a measure? He said, "No." If the bill passed, then such cases would multiply. He thought it imprudent to hold out that in the administration of justice witnesses might not consider themselves under a a solemn obligation, and he, therefore, was reluctant to consent to the abolition of judicial oaths.
regretted, that his noble and learned Friend had permitted himself to say what he had said of one of the most worthy, honest, and excellent sects in this country. His noble and learned Friend had professed a great respect towards that sect; notwithstanding which he had permitted himself to say, that the result of his experience was neither more nor less than this—that, in giving evidence, there was a tendency on their part to constant prevarication, which was part and parcel of their religion. He entered his protest against this statement. He believed, he had known this sect most intimately, in public and in private, during a long and uninterrupted intercourse, and he could say, that it was the necessary result of their sincere and conscientious regard for truth, and for the solemn obligation of what they called an affirmation, and which we called an oath, that they entertained an equal abhorrence of its violation. He believed, that his noble and learned Friend had confounded their great scrupulousness of affirming as to matter of fact, with an attempt to evade a question and to prevaricate. It was because they felt the solemnity of the obligation that they spoke so scrupulously, which made his noble 632 and learned Friend think they were taking nice distinctions, whereas it arose from the rigorousness of their sense of the obligation. It had been said, that this bill might induce persons to escape an oath under the pretext of conscientious scruples. But the bill required a solemn declaration that the individual considered an oath repugnant to the law of God. If he made this declaration falsely, what could he get by it? He would violate a sacred obligation as much by making this declaration falsely as if he took a false oath. He escaped from nothing, and therefore no one would make the declaration unless he had a scruple of conscience, and ex concessis, if he had, he ought to be relieved. His noble and learned Friend had said, if there was any sect with such scruple, he would consent to relieve them. Did it depend upon the greater or smaller number of dissentients, whether persons should be considered a sect or not? How many dissentients were necessary to constitute a sect? Could not any one conscientious difference of opinion entitle the persons entertaining it to be considered a sect? It was not because a Quaker or a Moravian held different doctrines from that of the Established Church, that they were allowed to affirm, but because they had this particular scruple, this tenderness of conscience regarding an oath. If on that ground alone they were relieved, then any number of the community who differed from us on that point were a sect. It was immaterial whether there was any difference on other points; if they considered it unlawful to take an oath, that was a religious difference distinguishing them from other sects. They were then on the same footing as Quakers and Moravians, and Separatists, to whom relief had been given on this point. He would suggest, whether it would not be desirable to have this bill referred to a select committee for the purpose of hearing and taking evidence on the subject. It was not correct to say, that a small number of persons only laboured under these scruples, for they were entertained by a very large body of the community. He thought, the scruples groundless, but it was not for him to decide for others. He thought, those who entertaintained them wrong; but a great deal might be said on the construction put on the remarkable and solemn language on which these scruples were founded. At the same time, though 633 they might be wrong, those opinions were held most conscientiously; and the Legislature having given exemption to many on this ground, he thought, those who sought for this exemption ought to obtain it. If the subject were sent to a committee to inquire into, he had no doubt, but that much additional information would be obtained, and their Lordships might, in consequence, be induced to give their sanction to this measure.
§ Lord Abinger
, in explanation, did not say that Quaker witnesses prevaricated. What he said was, "that you seldom got a direct answer to a question from them." His learned Friend said, "it was owing to their scruples," and he said, "he had occasionally made that apology for them—that their religious scruples prevented their giving a direct answer,"
The Bishop of London
suggested, that it would be better to refer, not the bill, but the whole subject, to a committee.
§ Lord Denman
said, after the appeal made to him, he thought he should be acting very improperly if he were to press this bill to a division, and prevent this inquiry. At the same time, he withdrew the bill with very great reluctance. The subject had been repeatedly considered lately, and he might almost say, with some consideration, such a concession as he proposed by this bill would be found to be perfectly satisfactory to all who had the interest of the community at heart, and who would wish to do an act of Christian charity and mere justice to their fellow-subjects. The committee might with great propriety embrace considerations of other matters connected with the subject as to the mode of administering oaths. The noble Earl said, he had only brought forward two cases in support of his argument. Did the noble Earl see no cases reported of persons sent to gaol and having their recognizances estreated for refusing to give evidence at the Central Criminal Court? These were notorious facts. He wished, without going into all these particulars, to bring the subject before their Lordships, in a manly, well principled, straightforward manner. He, therefore, felt surprise, when it was said, that he had understated his case, and that he had not done justice to the petitions intrusted to him, because he did not bring forward the cases of A and B. His noble and learned Friend (Lord Abinger) expressed opinions which he (Lord Denman) heard with the utmost regret, and 634 from which he totally dissented. His noble and learned Friend said, that it almost appeared to be part of the religion of Quakers never to give a direct answer, and that he never saw witnesses who fenced so much with questions. His experience was directly contrary; he had often seen Quakers—baffling it was true the legal acumen of counsel—taking a subject to pieces and coming to the truth with the utmost care and accuracy, and stating what the truth alone required, and which would have been liable to another interpretation if they had not exercised that care which was called "fencing with the question." His noble Friend said, he did not mean to impute "prevarication" to them. He asked if it were possible to go away with any other conclusion from such a statement. His noble Friend said, he had never found any religious scruples, in giving evidence, till last Saturday, and those he had succeeded in allaying. Had his noble and learned Friend not had the good fortune to convince the witness that she might take the oath, what would his noble Friend have done? That was one of the strong points of the case. Were people to be sent to gaol for entertaining conscientious scruples? No one could contemplate the situation of the Church in relation to this subject without serious alarm and regret, unless it were supposed all those persons who held these scruples were not sincere, and that they came to courts of justice for the purpose of giving false evidence. He would take the liberty of adding, that the careful and solemn way in which Quakers were in the habit of giving their evidence appeared to him to be the correct way, rather than the slighting and flippant manner in which evidence on oath was often given. He believed, that a man entertaining religious scruples to taking an oath, and solemnly in the presence of God declaring the truth of that which he declined to swear to, was a better witness than many of the most obsequious followers of the prescribed forms.
The Lord Chancellor
said, the course recommended by the right rev. Prelate was one which had occurred to him very early in this discussion to recommend their Lordships to adopt. The bill laid on the Table embraced considerations of the utmost importance, but at the same time only formed part of the subject; and he should suggest to the right rev. Prelate, 635 that the committee should be directed to inquire into the general subject of the administration of oaths, not confined to courts of justice.
§ Bill withdrawn. Committee to be moved for.
§ House adjourned at half-past seven o'clock.