LORD BROUGHAMpresented Petitions from numerous places in Scotland, and from Newcastle-upon-Tyne, praying for the adoption of a measure to allow a solemn affirmation to be substituted in lieu of an oath in certain cases. The noble Lord said that the case which was stated in all these petitions, and to which he called their Lordships' serious attention, was one in every way deserving of the gravest consideration. It was known to their Lordships that various Acts of Parliament had been passed, removing by degrees the disqualification—for it amounted to that—of certain sectaries to be examined in any cause, civil or otherwise, in consequence of their conscientious scruples to taking oaths; so that at length, in respect of three sects, the Quakers, Moravians, and Separatists, not only were the members of those bodies enabled to give evidence upon affirmation in civil cases, but they were also permitted to appear as witnesses upon making affirmation in criminal cases. Subsequently an Act was passed—in his (Lord Brougham's) opinion a most proper one—extending the same privileges to all persons who had formerly been members of those sects, and had ceased to belong to them, but who still retained a conscientious objection to taking an oath. These concessions were, however, confined to those three sects, and they alone enjoyed the privilege, if their privilege it might be called, which was a duty in them and a right of the community of assisting in the administration of justice as witnesses, and performing their duty without doing violence to their conscientious religious scruples. But now, and 250 ever since the last of the Acts of Parliament was passed touching those three sects, all others who did not belong to them remained in the same predicament of not being able to give evidence; and in respect of them the country and the administration of justice was in the predicament of losing the benefit of their testimony, because they conscientiously refused to take an oath. The consequence of this was, as the petitioners stated, and as might readily be supposed, grievous to the administration of justice. It might sometimes happen under the present law that a person might be put on his trial or brought before a police magistrate for a serious offence, and the only evidence to convict him being that of one of those respectable and conscientious persons who were unable to take an oath, the guilty man would escape, and the innocent man might be committed for contempt of court because he could not violate his conscience by swearing when his conscience told him not to do so. But it was understating the case to say that an innocent and conscientious witness might suffer imprisonment, while a guilty felon escaped; for not only might it happen, hut it had happened, that an innocent man was convicted whose innocence could have been established if evidence had been suffered to be given on affirmation. He (Lord Brougham) differed from the petitioners in the extent to which their opinion went, and considered that a general abrogation of the necessity of swearing witnesses, and a general power of giving evidence on simple affirmation, would not be an expedient change to make in our practice, civil or criminal. When Lord Denman's Bill on this subject was before their Lordships in 1849, he (Lord Brougham) had taken an active part in opposing that Bill. It was the only case in which he had ever had the misfortune of differing from that most learned and venerable person, and it gave him great pain to be under the necessity of testifying that difference of opinion, and of acting upon his own judgment. The Bill was referred to a Select Committee, and the evidence taken before them only served to confirm him in the opinion he had previously entertained respecting the danger of abandoning the security afforded by oaths. They all knew what great difficulty there was in the administration of justice in getting at the truth, when a disposition existed on the part of a witness to conceal or to pervert the facts; and although the fear of temporal punishment might do much, yet 251 he could not help apprehending that there might be many persons in the community induced to give false testimony, if an affirmation only were required of them, who would not be disposed to tell a falsehood when they felt that they were breaking their oaths. He well recollected an instance related to him by the late Lord Erskine of a witness, a female, from the northern part of the island, who was under examination. She had given the most clear and unhesitating testimony, when sworn before the Court of King's Bench in the accustomed English form, by the crier of the court adzministering the oath, and causing her to kiss the book. The Judge who tried the case said to Mr. Erskine, who was counsel on the other side, "Surely you cannot meet this evidence." He replied, "I think, my Lord, I can;" whereupon, having ascertained from what part of the kingdom the witness came, he said that he would swear her in the Scottish fashion. Accordingly he made her hold up her hand, and then, with that manner and voice which no one that he (Lord Brougham) had ever seen or heard could come near for its impressiveness, its suavity, and its dignity, he repeated to her that solemn form of oath by which our fellow-subjects in the northern part of the island are sworn, and which was as far superior to ours in this part of the country as it was possible for one solemnity to be superior to another. [Lord CAMPBELL: It is administered by the Judge, too.] Yes; and in it the witness was called upon to swear by Almighty God, and as he shall answer to God at the great day of judgment, that he will tell the truth, the whole truth, and nothing but the truth. Most improperly, indeed, as seemed to him (Lord Brougham), the words were added, "as far as I know, or shall be asked."[Lord CAMPBELL: That is now omitted.] He rejoiced to hear it. Well, the witness refused to take this oath; refused to repeat her testimony so sworn; she went down from the box, and there was an end of the case. He thought that a discretionary power should be given to the court to take an affirmation instead of an oath where there existed a conscientious objection on the part of a witness. He found from some cases that had been mentioned to him that this discretion was at present exercised in Scotland in some cases by the Judges, but more frequently by the magistrates. It was perfectly clear, however, that it was illegal so to dispense with the oath, and that the 252 evidence given on affirmation in such cases was inadmissible. The impression on his mind was that it would be expedient to render that course legal which it appeared was sometimes adopted under the pressure of difficulties, and he trusted that their Lordships would take this suggestion into their serious consideration.
LORD CAMPBELLpresented Petitions from cities and towns in Scotland to the same effect. The noble and learned Lord said, that the grievance to which the petitioners called the attention of their Lordships was a very serious one. At present the only classes who were allowed by law to take an affirmation instead of an oath were Quakers, Moravians, and Separatists. Now, he felt justified in saying that there might be orthodox members of the Church of England who considered it unlawful to take an oath; and, although he (Lord Campbell) was of a different opinion, he did not at all wonder that many persons did entertain serious scruples on the subject. But it was not the scruples of witnesses alone that their Lordships had to consider. The loss of the testimony was also to he considered. Suppose a witness refused to swear to the fact of the marriage of the father and mother of one of their Lordships; their title to sit in that House might be seriously affected. He hoped, therefore, that the time had arrived when a remedy might safely be provided for this grievance. He admitted that it would be monstrous to propose the abolition of judicial oaths altogether; but he could see no harm in abolishing them so far as the class of persons were concerned who really and truly entertained religious scruples on the subject; and he should be glad to see a measure giving relief to such persons introduced even during the present Session. He thought that the Common Law Commissioners, in their second report, had pointed out the true course to follow; and that was to allow the Judges a discretion in the matter.
LORD BROUGHAMsaid, he was not aware that that suggestion had been made by the Commissioners; but it was a very good one. He had been informed of a very hard case—perhaps the hardest that had occurred under the existing system. It was that of a young man who happened to be present when some offence was committed. He was taken before the sheriff, and, having refused to swear, he was sent to gaol for contumacy, where he remained one month. He was in feeble health, and 253 when he came out he took to his bed and never rose again. He died in six weeks after.
§ Petitions to lie on the table.