HL Deb 31 May 1853 vol 127 cc838-62

Order of the Day for the Second Reading read.

LORD LYNDHURST

, on rising to move the Second Reading of the Bill, said: As I understand, my Lords, that there exists very great and absurd misapprehension with respect to the object of this Bill, I am desirous of explaining its nature and the purpose which it has in view. The object of the Bill is simply this—to strike out of those oaths which parties are bound to take as qualifications for a seat in Parliament, and for holding certain offices, such parts of them as are inoperative, as are idle, and as are, I may say, absurd. My Lords, no well-founded objection can be taken, I apprehend, to such a course of proceeding. Some of my noble Friends near me state that they do not understand precisely what the Bill means. I will state it to your Lordships in a very few words, and with as much plainness and simplicity as I can. My Lords, the oaths that are required to be taken as a qualification for sitting and voting in Parliament, and for holding certain offices, are in number three. The first is the oath of allegiance, the next the oath of supremacy, and the last the oath of abjuration. With respect to the oath of allegiance, nothing can be more plain and simple than its language; it is coeval with the common law of the country; and, as was observed by Lord Hale, it is not entangled with any clause or declaration; its meaning is obvious to the most plain and common understanding, and it embraces the whole duty of the subject to the Sovereign. I can have no desire or intention whatever, therefore, to alter the terms of that oath. In respect to the oath of supremacy, that oath owes its origin to the reign of Elizabeth, being dated in the first year of her reign. It underwent no change till the first year of King William III., when it was altered into the form in which it has continued down to the present time. That oath was directed against Roman Catholics. This is quite obvious from the history of the period at which it was framed. It is obvious also from the terms of the Act in which it is contained; for, reading the different clauses and provisions of that statute, it is impossible to doubt that the Legislature, in passing it, had the Roman Catholics solely in view. More than that, my Lords, it is obvious from the oath itself. It consists of only two clauses or provisions. In the first, the party is made to declare that, from his heart, he abhors, detests, and abjures, as impious and heretical, that damnable doctrine and position that princes, excommunicated or deprived by the Pope or any authority of the see of Rome, may be deposed or murdered by their subjects or any other whatsoever. That is the first clause of that oath. No person can suppose for a moment that any Protestant entertains such opinions; but it is obvious and notorious that they were imputed to Roman Catholics—whether justly or not, it is not for me to state. It is quite clear, therefore, that that part of the oath was directed against Roman Catholics, and against Roman Catholics only. With respect to the second clause in that oath, it states that no foreign prince, person, prelate, State, or potentate, hath, or ought to have, any jurisdiction, power, superiority, preeminence, or authority, ecclesiastical or spiritual, within this realm. That was an opinion of the Roman Catholics. It is their opinion, even at this day; but no Protestant entertains such opinions, or ever did. It is quite obvious, therefore, that that part of the oath also was directed against Roman Catholics, and against Roman Catholics only. So that, according to the history of the period to which I have referred when the oath was framed, according to the language of the Act of Parliament which contained it, and according to the provisions of the oath itself, it is quite clear that it was not directed against Protestants, but solely against Roman Catholics. That being so, my Lords, how extraordinary it is that that oath should have been abrogated so far as Roman Catholics are concerned-no Roman Catholic being now required to take it—while for Protestants it is retained! We are in this singular position, that an oath which was framed for the purpose of being applied to Roman Catholics, is repealed so far as they are concerned, and is kept in force only against those to whom it never was intended to apply. As far, then, as Protestants are concerned, I contend that this oath ought no longer to be required. But I do not rest the case here with respect to the oath of supremacy. I am bound to say, if we are to interpret oaths according to the rule which I think is applicable to them—namely, according to the plain ordinary understanding of the words, I am bound to say that this oath contains that which at this moment is not true. From the moment that we recognised the Roman Catholic religion to the extent we do now, from that moment we admitted that the Pope had spiritual authority in this realm. The spiritual authority of the Pope is part of the Roman Catholic religion. It is blended with it. It cannot be separated from it, and you yourselves, in abolishing that oath of supremacy for the Roman Catholics, and substituting another oath for them, have constructively admitted that which I have now stated. This being so, then, the oath cannot he applied in its present terms without a qualification, and we are obliged to resort to that which we reprehend in Roman Catholics. We are obliged to qualify it, and are obliged to apply to it mental reservation. When we swear that no foreign prince has any spiritual authority in this realm, what is it supposed to mean? It means that he has no spiritual authority that can be enforced in a court of justice; and those, or some such words, we are obliged mentally to supply. We are compelled, therefore, to resort, as I have already stated, to what we condemn in Roman Catholics—namely, to qualify, by mental reservation and explanation, the terms of the oath. I repeat, however, that every oath ought to express in plain and distinct terms, without requiring any qualification, the fact which it contains. That a foreign prelate has spiritual jurisdiction in this realm, no man who looks to the history of the events of the last ten years can possibly deny; and that spiritual authority is of the most stringent kind. It is not to be enforced in a court of justice, indeed; but in a manner equally stringent, and perhaps more so, than any decision of a court of justice—I mean by withholding the rites of the Church, which are considered by Roman Catholics as essential to salvation. What more powerful instrument of compelling obedience can be adopted than this? As I have stated, it is much more stringent even than any decision of any court of justice. But we have had a practical proof of this, not only of spiritual authority exercised, but to such an extent as to trench even upon temporal authority. I may appeal for this purpose to many circumstances which your Lordships must have observed in England, and particularly in Ireland; but I shall refer to but an individual instance. I allude to what is called the case of the "Godless Colleges," where we had an exercise of authority encroaching even on the temporal power. Having stated this, allow me to say, that the objections which I am now urging against this oath, did not apply at the time of its original framing. At that period the Catholic religion was not tolerated. Attempts were made to remove it from society. The most severe penalties were imposed by the very Act of Parliament to which I have referred. No persons were allowed to say mass. Every individual was bound to attend the service of his own parish church, and no communication whatever was allowed to be held with the Pope of Rome. At that period it might very well be said that no individual could exercise the rites of the Romish Church except in strict secrecy and privacy, and in a manner not accessible to the knowledge of the Government of the country. At that period, therefore, the Pope of Rome may correctly be said to have had no authority whatever in this country. I mention these facts to show that at the period when this oath was originally framed, the objections I have urged against it did not apply. In further support of the application which I make for the abrogation of this oath on the ground of its being inapplicable, idle, and inoperative, as far as Protestants are concerned, I may appeal with confidence to the right rev. Bench, for whom I entertain the greatest possible respect, whether to call the Almighty solemnly to witness an idle and useless ceremony is not contrary to the principle of our religion, and directly at variance with the language of the Scriptures. I should say— Nec Deus intersit, nisi dignus vindice nodus is an axiom not confined to poetry alone, but extending also to religion and politics. I think I have stated enough, then, to satisfy your Lordships that, as far as Protestants are concerned, the oath of supremacy ought no longer to be enforced. I come now to the oath of abjuration. That oath was notoriously framed upon the model of the oath of allegiance, which was enacted in the third year of King James I., after the discovery of the Gunpowder Plot, and the conviction of the offenders. It bears date the 13th year of King William III. The occasion was the proclamation of the Pretender by the King of Prance as King of England, and the oath is confined altogether to the exclusion of the Pretender from the Throne. It sets forth that the Pretender has no right or title to the Throne of England, and that we abjure all obedience and allegiance to him. That is the substance of the oath of abjuration, stated shortly. That oath was, from time to time, as circumstances changed, varied in its form. It was altered upon the accession of Queen Anne. It was altered, also, upon the Union with Scotland. It was afterwards altered upon the accession of George I.; and, lastly, after the death of the old Pretender, it was altered in the 6th year of George III., in order to adapt it to the new state of things, and then it was applied to the descendants of the Pretender. So you perceive it was varied from time to time in order to adapt itself to the new state of facts; and it is reasonable, to suppose that, when the whole line of the descendants of the Pretender had become extinct, following former precedents, this oath ought to have terminated also. To take it now, there being-no person to whom it can apply, is an idle mockery and an obvious absurdity. If any person were to go voluntarily into any company, and were to say, "I do sincerely and in my conscience, before God and the world, declare that none of the descendants of the late Pretender"—there being no such persons in existence, and no possibility that such persons should have come into existence—"have a right to the Crown of Great Britain, and I abjure all obedience to them and any of them; and all this I state in the true and lawful sense of the words, without any equivocation, mental evasion, or secret reservation whatsoever; and all this I do upon the true faith of a Christian"—why, my Lords, I say if any person were voluntarily to go into any society, and make such a statement, it would be considered that he was a person who ought to be put under some restraint. Yet daily do we see noble Lords come to this House, stand at that table, all business seems suspended, and my noble and learned Friend upon the woolsack, assuming additional gravity with the occasion, hears that statement made, not voluntarily, but by compulsion—not only stated but sworn to, and the Almighty called to witness it. I am sure that your Lordships cannot for a moment sanction such a mockery when once it is brought under your attention. My Lords, there is an addition to that which I have stated, an extension I may call it of the oath of allegiance, and I refer to it in order to show how unnecessary it is, because I propose to strike out every part of the oath to which I have referred except that which relates to the succession of the Crown as fixed by the Act of Settlement. This is sufficient to maintain the Protestant succession, and this I preserve because I conceive that no greater calamity could befal this country than that the crown of this country should be placed upon the head of a Roman Catholic. I may be allowed, in consequence of the unfounded observations which I have heard made with respect to this Bill, to refer to the fourth clause. It is supposed that by that clause members of the Jewish religion may be able to introduce themselves into the House of Commons; and I have been attacked in various shapes as if I had proposed this clause with that intention. Now, in the first place, I should not feel myself justified in attempting to do by a side wind what I could not do openly; but no lawyer can read the clause and suppose for a moment that under it any member of the Jewish religion can go into the House of Commons and take the oaths contained in this Bill. Why, at this very moment the words "on the true faith of a Christian" are not contained in the affirmation of the Quaker, neither are they in the Catholic oath; yet if a person of the Jewish persuasion were to go into the House of Commons and take an affirmation in the one instance, or the Catholic oath in the other, it would be a mere nullity, and he would be just as liable to a penalty if he sat in that House after taking that affirmation or oath as if he had taken the ordinary oath for Protestants. I admit that that particular clause is copied from a Bill laid on the table of your Lordships' House three or four years ago by a noble Friend of mine; and that there are some general words in it which might have allowed Moravians and Separatists to sit in the House of Commons. But as I do not wish in any way to alter the class of persons who are to enter that House, I should propose to strike out those general words in Committee, and to confine the Bill, as now, to Quakers only affirming in the manner described by the Act. I have been asked why I have not extended this Bill to Roman Catholics. The answer which I have given to that question has been very short and pithy. I have said that I am anxious this Bill should pass, and that I do not wish to entangle it, therefore, with any other matter that might render it difficult to pass. That is the simple answer which I have given. If any noble Lord thinks it right to alter the oath as administered to Roman Catholics, it is perfectly competent to him to bring in a Bill for that purpose at any time; but I have not thought it right to encumber this Bill with any attempt of that nature. I have been asked, also, to strike out the words "on the true faith of a Christian." My answer to this has been—I am bound to respect the decision of this House with respect to the measure that has been lately brought under their consideration. I cannot strike out those words, because, if I strike them out, there is no chance of my passing this Bill. I yield to necessity on this occasion; at the same time I must be allowed to say, having voted in the minority upon the decision to which I have just referred, that in yielding to this necessity, it is against my own. convictions. I may be permitted, in justification of myself, to state very shortly the grounds of that conviction, so far as regards these words. The history of the introduction of these words into the oath, which is rather curious, may not be known to all your Lordships, at least in its details, and I will, therefore, give you an account of it as briefly as I can. After the discovery of the Gunpowder Plot, in the third year of James I., a search was made in the chamber of Francis Tresham, one of the conspirators; in that search a manuscript was found, entitled a Treatise on Equivocation, which had been altered in many places by Garnett, Superior of the Jesuits, and which was marked with the imprimatur of Black-hall, at that time archpriest of the Roman Catholic Church. This manuscript, after having been made use of on the trial of the persons implicated in the plot by the Attorney General of the day, afterwards passsed through the hands of Archbishop Abbot and Archbishop Laud into the Bodleian Library at Oxford; and after having been for a long time lost sight of, has been recently brought to light, and published with a suitable preface by Mr. Jardine, and is a publication worthy of your Lordships' perusal. In the fly-leaf were three or four lines written by Sir Edward Coke, at that time Attorney General, and who prosecuted in the case. The object of the treatise is to show how the obligation of an oath may be avoided. In one of the chapters the doctrine is laid down, that, if a question is put to you which you think you are not in conscience bound to answer, you may answer the question with words uttered aloud, but at the same time qualify those words with other words uttered mentally, which taken in connexion with the words which were uttered aloud, will prevent your taking a false oath. Thus, if a magistrate, say, asks, "Were you in London at such a time?" you may say aloud, "I was not in London," and swear to it, but at the same time you may add mentally, "not for an improper purpose;" which mental reservation will save you from a false oath. It is remarkable, my Lords, that in the Letters of Pascal he ascribes to the Jesuits precisely the species of equivocation which we have here laid down as a principle of the Catholic Church in the handwriting of the Superior of the Jesuits. It was expected that the words "upon the true faith of a Christian," if added to the oath, would operate so powerfully as to prevent Catholics from taking such an oath if there were any intention of violating it on their part. Now, it is remarkable that it was in the very year in which the Treatise upon Equivocation was discovered that the words "without mental reservation and upon the true faith of a Christian," had been added to the oath of abjuration. There could be no doubt, therefore, that when that Act of Parliament was framed, the Attorney General, Sir Edward Coke, was in possession of the treatise in question, and had carefully studied its contents, and had inserted these words, with a view to rendering the form of oath as binding upon the members of the Roman Catholic persuasion as it was possible to make it. There can, therefore, be no doubt whatever that these additional words of precaution were inserted with a view to the Roman Catholics; that they were introduced, not as a test of Christianity, but solely for the purpose of rendering the oath more binding on the Roman Catholics. It was a remarkable circumstance, too, that the oath of abjuration had been framed upon the model of the oath of allegiance, and the concluding words of the latter oath had been taken from it and added to the oath of abjuration. To apply, therefore, these words "on the true faith of a Christian" to persons of the Jewish persuasion was absurd. They had never been intended to apply to that people, and could never have been intended to apply to them, seeing that the Jews had been banished from England for 400 years previously, and did not return to England till many years afterwards? The application of the words to these persons appears to be altogether extraordinary. The subject to which I was calling your Lordships' attention has been maturely weighed and deeply considered by the learned Judges who decided upon the case of Alderman Salomons—a case which, was argued at great length and much learning in the Court of Exchequer; and. I wish to call your Lordships' attention to the opinions which were advanced by those learned personages on that interesting trial in connexion with that point. I will first observe, however, that to say that if the oath of abjuration—although it was framed for the purpose which I have stated, namely, to place greater restrictions upon the Roman Catholics—had not been called into existence, some direct Act of the Legislature would have been passed dealing with the case of members of the Jewish persuasion, is a position which is untenable. It is a remarkable fact that during the reign of William III. there was no attempt whatever made to introduce any such measure, although during that period there was nothing to prevent Jews from taking a seat in the House of Commons. I am ready to admit that at a subsequent period, when the position of the Jews in this country was not rightly understood, and when they were considered as aliens, any member of that persuasion endeavouring to obtain a seat in the House of Commons might have been excluded by some positive enactment upon the part of the Legislature of this country. No such Act, however, at any period of our history had been passed into law, and Jews are excluded at the present day from a seat in Parliament merely by the operation of the oath of abjuration. I will now proceed to refer to the opinions of the learned Judges as delivered in the case of Alderman Salomons. One of these learned Judges (Mr. Baron Martin) said— At this time there was no oath or declaration required which would have prevented a Jew from sitting and voting in Parliament; and I observe nothing whatever in the Act which has any tendency to show that the Legislature desired or wished to exclude them. The whole frame of the statute is directed against persons opposed to the new limitation of the Crown, and who were truly believed to be principally Christians of the Roman Catholic religion; and I think the words upon the true faith of a Christian' were inserted in the oath, not as a test of Christianity, but for an entirely dif- ferent object—namely, for the purpose of framing an oath in a form the most effectually binding upon the consciences of the Roman Catholics."—21 Law Journ. Rep. Excheq. 183. Another of the Judges, for whom I entertain the highest respect, a person of great learning, of great acuteness, of great soundness of judgment—I mean Mr. Baron Alderson—expressed himself in these words:— I do most seriously regret that I am obliged, as a mere expounder of the law, to come to this conclusion—for I do not believe that the case of the Jews was at all thought of by the Legislature when they framed these provisions. I think that it would be more worthy of this country to exclude the Jews from these privileges (if they are to be excluded at all, as to which I say nothing) by some direct enactment, and not merely by the casual operation of a clause, intended apparently in its object and origin to apply to a very different class of the subjects of England."— Ibid. 190. In another passage of Mr. Baron Martin's judgment, he said— A construction the other way excluding Jews from sitting and voting in Parliament, not by a direct and intentional legislative Act, but by an unforeseen and unintended application of a few words inserted in an oath with an entirely different object, is not in accordance with what I consider to be the principles and practice of the law of England."— Ibid. 184. In that principle I entirely concur; I go further, and I say, that it is utterly against the principle of the constitution to exclude the Jews from Parliament on any such ground. I say that it is the mainspring of our glorious constitution, that no British subject, no natural-horn subject of the Queen, ought to be deprived of the rights enjoyed by his fellow-subjects unless he has committed some crime, or unless he is excluded by some positive enactment of the Legislature directed against him or against the class to which he belongs. That is the true principle of the constitution; and, such being the case, these persons can only rightly be excluded by the concurrent voice of the two Houses of Parliament and with the assent of the Crown. If you exclude them by the casual operation of a clause which was never directed against them, or against the class to which they belong, you unjustly deprive them of their birthright. I say, then, my Lords, that if I retain these words, "on the true faith of a Christian," in my Bill, I retain them entirely ex necessitate, and entirely against my decided conviction on the subject. My Lords, I beg to move the second reading of this Bill.

Moved—That the Bill be now read 2a.

The Question having been put,

The EARL of DERBY

My Lords, I had expected that some of the noble Lords opposite connected with Her Majesty's Government would have favoured your Lordships with some observations on the question brought forward so eloquently by my noble and learned Friend. But as none of those noble Lords seem inclined to take any part in this discussion, I cannot help calling your Lordships' attention to the circumstances under which this Bill has been introduced. It is not my wish to offer any opposition to the second reading of it, for by assenting to the second reading of this Bill, I apprehend I am assenting only to the principle that this House is ready to amend those oaths which are necessary to be taken by Members of this and the other House of Parliament; and by doing that, I apprehend that I do not pledge myself to assent to the specific alterations proposed by my noble and learned Friend with his usual zeal and ability. With regard to those oaths themselves, I am perfectly ready to admit that there are portions of the language of those oaths which it might be desirable to alter, and that there are other portions which are mere surplusage, and ought to be omitted. But, though I consider there are some words in the existing oaths and some language which I admit it might be desirable to alter or omit, I do not go along with my noble and learned Friend in thinking that the alterations he proposes to introduce, are the most suitable for the purpose intended. My noble and learned Friend does not propose to alter or vary the oath of allegiance, but he does propose to alter the oath of supremacy. According to what we know with regard to the working of that oath, some of your Lordships have entertained scruples—scruples which, in the cases of two of my noble Friends, I am happy to say, have been overcome. I am prepared to accept of amendments in those oaths, but I do not admit the doctrine of my noble and learned Friend; and, indeed, I was surprised to hear him state such a doctrine, namely, that as soon as you admitted Roman Catholics into Parliament, you had by that admitted the spiritual authority of the Pope in this country. I always understood that, by the oath in question, all that was intended, and all we do swear, is this—we do not swear that the Pope does not exercise over those who chose to submit their consciences to him an amount of spiritual authority—but what we declare by our oath is, that we do renounce such spiritual authority on the part of the Pope in this country. And, with great respect to my noble and learned Friend, I am very unwilling—more especially in those days, and looking at the animus which seems to actuate the See of Rome, and the encroaching spirit of that Church—I should be unwilling to omit from the oaths of Protestant Members of this and the other House of Parliament their solemn protest against the assumptions and the aggressive demands of the Sec of Rome; and though I think the Roman Catholic Members are properly exempt from taking those oaths, I think it is not a matter of surplusage that every Protestant Member should record his denial of such assumptions on the part of the See of Rome. I do not object to leaving out of the oath the words renouncing allegiance to the descendants of the Pretender. I believe there are some gentlemen who lay claim still to being the descendants of the Pretender; but I apprehend their claims are not of a very formidable character, and I desire to see retained that which my noble and learned Friend declares his willingness to adhere to—the declaration in the oath itself, that the succession to the Crown is limited to the present Royal Family and their heirs, being Protestants. My noble and learned Friend admits that this part of the oath should be retained; and we desire to have it recorded still that the succession to the Throne is limited to Protestants. Now, if I am not mistaken, that is the view still maintained by a very considerable number of Her Majesty's present Government; but I hold in my hand a Bill introduced by Lord John Russell last Session for amending Parliamentary representation, and I find that, for the purpose of admitting the Jews into Parliament, the noble Lord has omitted from that Bill the words which my noble and learned Friend—from necessity, not from conviction—proposes to retain; but the noble Lord carefully provides against the possible claims of any descendant of the Pretender, and against the validity of any claim on the part of the Pope, to any temporal or civil powers whatever in this country. I am quite satisfied, as I have already stated, that my noble and learned Friend has no intention, by means of this Bill, to seek to reverse the decision which your Lordships have taken on this subject. That question has been solemnly discussed and solemnly decided by a very considerable majority of your Lordships' House; and my noble and learned Friend says he retains those words in his Bill. I confess—that being the view of my noble and learned Friend, and knowing he has a very strong opinion upon the question—I confess I regret he should have prejudiced this Bill by the introduction of a discussion in favour of the admission of the Jews to Parliament, and thereby showing that the words he proposes to retain ought to be struck out. The noble and learned Lord says he retains those words for the sole purpose of facilitating the passing of this Bill. That can only apply to the passing of the Bill through your Lordships' House; because he must be perfectly aware that, from the unfortunate disagreement which exists between the two Houses on this subject, the retention of those words would give the Bill no additional facilities in the other House; in fact, the omission of those words would be a very great temptation to a majority in the other House to pass the Bill. Now, I put this to the noble and learned Lord—this Bill is now introduced on the last day of May—the House of Commons have been so overwhelmed with the amount of business, that they have made very little progress with many important subjects of legislation—the great weight of business pressed upon them has been made, upon the part of the Government, an excuse—I do not say it offensively—but it has been assigned as a reason why they could not proceed with other very important matters of legislation this Session; and I want to know what security have we that this Bill being passed in your Lordships' House, and being sent down to the House of Commons, worded as my noble and learned Friend proposes, will not, if it should be taken into consideration at all, be amended by the omission of these words; and that towards the latter end of July, or the beginning of August, the Bill assented to by your Lordships, but amended in the House of Commons by the omission of these significant words, will not be brought up to your Lordships' House for the assent of those few Peers who still remain to occupy their seats in Parliament. I am not desirous of throwing any impediment in the way of a fair, impartial consideration of this subject; but I hope I shall not be thought to go too far if, looking at that which noble Lords opposite must admit is perfectly possible, I put a plain question to them as to the course which they would pursue with regard to such an amendment if it were introduced into the Bill by the other House. It is quite clear that if the Bill returns to this House at the end of the Session, amended in the manner I have suggested, it is possible it may be, Her Majesty's Government have at that time the absolute control over its adoption or non-adoption. If this Bill had been brought in at an earlier period of the Session—and I know not why it was not—we should have had full time to consider any amendments which might be made in it by the other House, in a full House; but, under the circumstances under which it is brought in, it is impossible that we can exercise that judgment. Unless, therefore, the Members of Her Majesty's Government, looking with respect to the decision to which your Lordships have already come, determine that that decision shall not be reversed by any side wind—unless Her Majesty's Government declare that they will adhere to that decision of this House—that the weight of their influence in both Houses shall be exercised for the preservation, both there and here, of those words which appear in the present Act—or, unless you are prepared to give your judgment on a second Jew Bill, in the course of the month of August—I warn you how you permit this Bill to leave your Lordships' House at this time. I do not speak on mere suspicion on this subject, because we have had lately a significant declaration from the noble Lord the leader of the House of Commons, in answer to a deputation which, I understand, went to him on the part of some of the advocates of the Jewish claims, that he was not prepared to bring in any direct measure for the purpose of rediscussing that question, but that there was a Bill for the alteration of oaths, which was about to be introduced in the other House of Parliament; and he told the advocates of the Jews that it would be prudent to see how far that Bill might be made available for the purpose of removing the Jewish disabilities—

LORD LYNDHURST

was understood to disclaim having had any communication with Lord John Russell on the subject of this Bill.

The EARL of DERBY

I am not making the slightest reflection upon my noble and learned Friend's good faith. I am perfectly convinced that he has brought forward this Bill with the best possible intentions, and for the object which he has stated to your Lordships;—but we have the declaration of the leader of the House of Commons that this Bill may possibly be perverted from the purposes which my noble and learned Friend has in view, and be made available to effect, by a side wind, that which he shrinks from doing directly in the face of your Lordships' decision. I will not offer any opposition to the second reading of the Bill. I have some objection to the words proposed in the oath; but that is a matter for consideration in Committee. I am ready to admit the propriety and expediency of in some degree amending the oaths; but I must reserve to myself the perfect liberty of taking any course which I may think fit upon the next stage of the Bill, unless we receive some assurance from noble Lords opposite—which, I think, they can have no hesitation in giving, if they are disposed to deal with this question in a spirit of fairness, and to allow to their opponents a fair opportunity of stating their own views—that they will not take advantage of the very advanced season, to smuggle a measure through the House, which has already been decided against by your Lordships. I trust they will not hesitate to say that in this House, and in the other House, they will resist any attempt which may be made to amend the Bill in the manner I have pointed out, and to pervert it from the avowed object with which it is introduced by its framer. If they will give that assurance, they shall meet, on my part, with no opposition to carry through a Bill of this kind; but if they will not give that assurance, I must be permitted to look to probable and possible contingencies—I must retain my suspicions as to the danger incurred, and I shall think it will then be better that the Bill should be postponed, and taken into consideration at an early period of the next Session.

The EARL of ABERDEEN

My Lords, with regard to the proposed alteration of oaths and declarations, I confess I think the speech of my noble and learned Friend has been so full of eloquence, and such a triumph of good sense, that it is impossible to resist his arguments in favour of his proposition. It is of course quite unnecessary for me to add a word to the statement he has made, which must carry conviction to every mind. But with regard to the assurance referred to by the noble Earl, I must say it is one of the most unusual description, one I never recollect hearing made in this House before, and one to which it would be impossible for me to accede. The noble Earl has, in the first place, totally, though unintentionally, misrepresented the statement of my noble Friend Lord John Russell. That noble Lord, as I am informed, stated to a deputation addressing him on the subject of the relief of Jews from the disabilities under which they labour, that he waited to see what the nature of the Bill was that was announced by Lord Lyndhurst—of which, at the time, he was perfectly ignorant, and the object of which was, according to common report, to affect the condition of the Jews. Therefore it was that the noble Lord said he would wait to see what the provisions of the noble and learned Lord's measure were before he gave any advice or pronounced any opinion on the subject. Now, though I regret that the noble and learned Lord's speech was not delivered some time ago, as it would have had some chance of diminishing the majority with which this House rejected the measure for the relief of the Jews which I proposed, and notwithstanding that I still entertain the desire which I then expressed for the removal of those disabilities, I am perfectly prepared to make no proposition on the subject at present. I do not wish to interfere with the progress and success of a measure so manifestly consistent with reason and common sense as is the Bill proposed by the noble and learned Lord, and I shall therefore abstain entirely from interfering with any of the provisions of the Bill. Such will be the course of the Government; but then as to what may be the consequences if amendments should take place in the House of Commons, I must unquestionably decline to give any pledge with regard to the course which the Government may think it their duty to take. I think it most unreasonable that any noble Earl should expect us to fetter down our discretion in such a way. Why is the noble Earl, who talks of inability to meet such amendments as may be made, unable to exercise the same power in opposing the amendments, as he exercised in opposing the Bill which was rejected by him and his noble Friends? At all events, he has the power—which has been used more than once—of enforcing a majority by means of proxies. Only the other night the noble Earl had a greater number of proxies exercised on his side of the House, than were exercised by Government. If his friends find it convenient towards the close of the Session to attend to their duties in this House, they can then again have recourse to the same means. I can say no more than this, that I decline to give any pledge or to fetter my discretion in dealing with any amendments that may be made in the Bill of my noble and learned Friend. As it stands, I cordially support it; and as it stands, I have no doubt the Ministers in this House will join me in supporting it.

The EARL of CLANCARTY

My Lords, I cannot allow this discussion to close without expressing my decided dissent from the exposition which the noble and learned Lord has given to your Lordships of the intent and meaning of the oath of supremacy. He has stated, and truly stated, that according to the plain understanding of the words of the oath, it affirms what is not true; and that as that is the rule by which oaths are properly to be interpreted, your Lordships are in the dilemma, when taking this oath, of having to do so with a mental reservation—doing that, in fact, which we reprehend in Roman Catholics. My Lords, it was in consequence of holding this view of the objectionable terms of the oath of supremacy, especially since the passing of the Irish Charitable Bequests Act, recognising the usages and discipline of the Roman Catholic Church, and the ranks and ecclesiastical functions of her ministers in Ireland, that I and others have objected to this oath; and that from not choosing to do that, which I now hear it stated, that every noble Lord must do who takes the oath, namely, take it with a mental reservation, I and another noble Lord, a Member of this House, were excluded from taking our seats during the last Parliament. My Lords, both in and out of this House have I formerly represented to your Lordships what appeared to me to be the anomaly of retaining an oath to be sworn at the table of the House so apparently at variance both with fact and with recent legislative enactments. I appealed to the House for an explanation of the sense in which the oath was to be understood, and to be made of practical application; but none rose to solve the difficulty. I subsequently, when the late Parliament was convened, became a petitioner to your Lordships to have the oath repealed or modified. The application was alike unsuccessful; and, lastly, I presented myself at the table of the House, and stated my willingness to take the oath, if I could be informed in what sense it was administered. I was then answered that it was not in the power of the House to afford me the explanation I sought. Had I since continued to regard the oath as the noble and learned Lord has expounded it, I should not now have the honour of enjoying a seat in this House; hut, however presumptuous it may appear in so humble a Member as myself to question the correctness of the noble and learned Lord's exposition of a great constitutional oath, I must differ with him both as to its having been in its origin directed against Roman Catholics, and as to the sense in which it is legitimately to be taken. My Lords, I believe that oaths are to be taken in the sense in which they are declared to be administered. It is undoubtedly desirable that they should be plain and unmistakable in form; but where the sense in which they are to be taken is authoritatively explained, I do not think they are to be taken in any other sense. Now, my Lords, we are not left to conjecture respecting the intent of the oath of supremacy. The same or nearly the same Parliament that originally enacted the oath, as stated by the noble Lord, in the reign of Elizabeth, only four years after its enactment, gave the following authoritative exposition of it, for which see 5. Eliz., c. 1, sec. 14., as follows:— Provided, also, that the oath expressed in the said Act made in the said first rear shall be taken and expounded in such form as is set forth in an admonition annexed to the Queen's Majesty's injunctions, published in the first year of Her Majesty's reign; that is to say, to confess and acknowledge in Her Majesty, her heirs and successors, none other authority than that was challenged and lately used by the noble King Henry VIII. and King Edward VI., as in the said admonition more plainly may appear—which is (these are the words of the admonition)— which is and was of ancient time, due to the Imperial Crown of the realm; that is, under God to have the sovereignty and rule over all manner of persons born within her realms, dominions, and countries, of what estate, either ecclesiastical or temporal, soever they be, so as no other foreign Power shall or ought to have any superiority over them. Hence the oath is to be understood as no more than a declaration of the ancient and still subsisting common law of the realm. It is not directed against Roman Catholics, for it affirms no more than what was the law in Roman Catholic times; and it is, therefore, not to be held as inconsistent with the maintenance and regulation of their form of worship: it only repudiates the assumption by any foreign Power of authority superior to that of the Crown. My attention having been directed shortly before the assembling of the present Parliament to this Parliamentary exposition of the sense in which the oath is to be understood and administered, I had no difficulty in taking it; and feel that I am warranted in saying that the noble and learned Lord's exposition is incorrect. The noble Lord speaks of the anomaly of retaining the oath of supremacy for Protestants, while the Roman Catholics are exempted from taking it; but who is there so responsible for the law as it now stands, with respect to Parliamentary oaths, as the noble and learned Lord himself, who was Lord Chancellor at the time the oaths were altered for the Roman Catholics? When altering the oaths to suit the Roman Catholics, the noble Lord should have altered what he thought it was objectionable for a Protestant to be required to swear to. But, instead of that, the Parliamentary tests have since continued for a quarter of a century unchanged. Although I differ from the noble and learned Lord's exposition of the oath of supremacy, I concur with him that the oath is in form objectionable, and ought to be made as clear and simple as possible. I also think that the oath of abjuration ought to be done away with, except so far as it records the limitation of the sovereignty of this realm to the reigning family being Protestants; but so long as the Pope continues to claim a spiritual supremacy over this realm, I cannot think that it is superfluous to require as a proper test for the Members of the two great Councils of the nation that they should repudiate this pretension in the most solemn manner. I must also object to the Bill before the House, that, although not introduced with that design, it in fact would relieve Roman Catholics from having to take the oath at present prescribed for them, and consequently would deprive the Protestant religion and Protestant Government of the kingdom of the only guarantee that was required of them when their civil disabilities were removed. Roman Catholics may, if they please, at present take the oaths of allegiance, supremacy and abjuration; and they are only restrained from doing so because they do not choose to acknowledge the ecclesiastical supremacy of a Protestant Sovereign; but if this Bill were to pass, that would not be necessary; and they would be content to enter Parliament without making any express profession of religion, except that they would take the oath in common with their fellow subjects "on the faith of a Christian." I had not intended to have addressed your Lordships at this stage of the Bill; nor should I have done so, but that I felt it necessary to contradict the exposition the noble and learned Lord gave of the oath of supremacy, believing, as I now do, that taken in the sense in which it is administered, it is not merely unobjectionable, but that it ought, in substance at least, to be maintained. The subject of the modification of the oaths of Parliament I think well worthy of consideration; but to the noble Lord's Bill as it stands, I am opposed.

LORD REDESDALE

thought that, after the small assurance given with respect to the manner in which the Government would deal with the Bill, if it should be returned to their Lordships in an altered state at the end of the Session, it would not be at all safe in their Lordships, if they meant to adhere to the opinion they had already expressed with respect to the admission of Jews to Parliament, to allow the Bill to go further than the present stage. The noble Earl opposite said, that at any period of the Session the opponents of the admission of the Jews would retain the power, by the use of proxies, of rejecting any measure by which the Jews could enter Parliament; but, in the first place, he did not think it desirable to reverse a decision by proxies; and, in the next place, at a late period of the Session, there was not likely to be that attendance of Peers on the Opposition benches, where, for the most part, were seated those who were in favour of the exclusion of the Jews, holding a sufficient number of proxies to represent fully the opinions of opponents of the admission of the Jews. For his part, he did not see the imperative necessity for haste in respect to this Bill; and every argument adduced on the present occasion for the alteration of the oath was just as valid on the death of Cardinal York, when all the descendants of James II. became extinct. Since then, various Bills had been introduced, proposing the alteration of the oath; but none of them had been successful, in consequence of the difficulty of passing those measures. During the previous part of the present Session it had been a complaint made, he believed by the noble and learned Lord himself who introduced the present Bill, that nothing had been brought before their Lordships' House. Consequently, the present Bill might have been, and he thought it unfortunate that it was not, introduced earlier. He trusted that their Lordships would look at this question as affecting a most important principle; and that while they signified their readiness to remove what was objectionable in these oaths, and to affirm the principle of the Bill, they would, at the same time, declare that in consequence of the period at which the Bill had been introduced it was impossible for them to allow the measure to proceed beyond the present stage.

LORD CAMPBELL

did not rise to offer any argument upon this important measure, but to bring before their Lordships the authority of one whose authority was very high, particularly with those who might be supposed prepared to resist the Bill introduced by his noble and learned Friend. He referred to the authority of the great Lord Eldon, who said that the oath of supremacy was superfluous and improper. In the year 1824 a Bill was introduced by Lord Holland to enable the Duke of Norfolk to exercise the office of Earl Marshal upon taking the oath of allegiance only. That Bill passed and received the Royal Assent; but there was a violent protest against it; and as the language of that protest was deemed rather unparliamentary, it was brought under the notice of their Lordships' House. Upon that occasion Lord Eldon expressed his approval of the Bill, and he also made use of these memorable words:— With respect to the oath of allegiance to be taken by the Earl Marshal, I must say, as a lawyer, that it contains in it everything included in the oath of supremacy, and that the oath of supremacy was in fact added as an explanation of the oath of allegiance; or, as Lord Hale has expressed it, was passed to unravel the errors which had crept in.'"—[2 Hansard, xi. 1492.]

LORD BROUGHAM

thought it almost superfluous to add a word to the inimitable and unanswerable speech of the noble and learned Lord who had introduced this measure, and he would, therefore, allude only to what had occurred since—the demand made by the noble Earl (the Earl of Derby) that the Government should pledge themselves as to the line of conduct they would pursue under circumstances which they could not possibly foresee. He certainly considered it an extraordinary thing to ask the noble Earl, who could not, of course, tell what amendments there might be made, to give a pledge as to what his conduct might be in the most hypothetical of possible cases. He himself was in much the same predicament with regard to a Bill of his as was the noble Earl with regard to this. He had a Bill standing for a third reading with regard to the law of evidence, in which his noble and learned Friend (Lord Campbell) entirely agreed; but he objected to a clause which he had more than once termed a clause for the abolition of trial by jury in civil cases. That which he (Lord Brougham) called a great improvement, his noble and learned Friend exaggerated, he could not suppose seriously, into the abolition of trial by jury. He had the support of his noble and learned Friend to the Bill as it now stood, because that clause was omitted; but inasmuch as the clause was in accordance with the Report of the Commissioners, who belonged to the other House, the House of Commons would probably restore the clause if they had the opportunity. His noble and learned Friend said, "You must give me a pledge that when I am gone away on circuit, and can be no longer here to resist the possible alteration of the Bill, you will prevent that clause being introduced, which I know you are very anxious to introduce, and have only kept out to enable the Bill to pass." He (Lord Brougham) would give no such pledge to his noble and learned Friend; and that was just what the noble Earl (the Earl of Aberdeen) said on the same thing being required of him. He hoped their Lordships would not withhold their support to this Bill in its present shape on the bare possibility of that which they did object to being added in another place. He hoped the Bill would receive the assent of Parliament, for if it was thrown out, it would, in his opinion, he a great blot on the Legislature, not merely in a civil but in a religious point of view.

The EARL of DERBY

wished to explain a misapprehension on the part of his noble and learned Friend (Lord Brougham). He did not call upon the Government now to declare what course they would pursue at some remote period, in perfect ignorance of the character of the amendments proposed. He asked nothing so unreasonable. What he said was this: that whereas there was ground for supposing an Amendment, which he distinctly specified, reversing a decision arrived at by their Lordships in the present Session, would be added to the Bill, and wholly out of character with the Bill—he asked for an assurance on the part of Her Majesty's Government, that in this and in the other House of Parliament, they would use their influence for the purpose of preventing that specific Amendment being carried. Her Majesty's Government were not in ignorance of the Amendment. The Amendment was definite, and would have the effect of undoing by a side wind what had been already done in this House. He, therefore, asked the noble Earl to state what course he would pursue, and whether there and here he would prevent the Amendment being carried into effect.

LORD BROUGHAM

begged the noble Earl (the Earl of Derby) to forgive him for setting him right on this question. There were two ways of making this alteration, and those two ways were so entirely different that a person might consistently and logically approve of the one, and consistently and logically disapprove of the other. They might either leave out the words "on the true faith of a Christian "altogether, or they might postpone those words to the end, and let them read, "on the true faith of a Christian, so help me God." He admitted there would be a dispute as to what would be the effect of the second mode, though no dispute would arise on the first.

The EARL of WICKLOW

thanked the noble and learned Lord for introducing this measure. He should not have risen had it not been for the reasons assigned by the two noble Lords opposite who had spoken against proceeding with the Bill. The noble Earl (the Earl of Derby) declared that he should not offer any opposition to the second reading, because the alterations he might propose would more properly come in Committee, and therefore he admitted the necessity of legislating. With regard to the request which the noble Earl had made, it was so extraordinary and unreasonable that he was not surprised at the answer he received. The second reason was suggested by the noble Lord (Lord Redesdale), namely, the lateness of the season, and the time when the Bill was brought forward. Was it possible their Lordships could consider the last day of May too late to bring forward a measure which they were all agreed in considering necessary and expedient? If this was too late to bring forward such a measure, there might as well be an end to legislation; and if the Bill had been brought on earlier, there would have been infinitely more force in the argument that it was premature until the Jew Bill had been decided. He thought his noble and learned Friend had acted wisely and judiciously in not bringing forward the Bill until the decision on the Jew question had been taken; and in bringing it forward as soon as possible after the rejection of that measure, there was much less probability of any alteration in the Bill, and of any delay in removing the absurdity and mockery which at present attached to the subject of oaths.

The EARL of HARROWBY

said, it was quite clear there was a strong desire on the part of the House of Commons to admit Jews to Parliament—it was quite clear this Bill could be easily adapted to that purpose, and when he found the Government objecting to give a pledge, he had no doubt what would be the result. He had no doubt the Bill would come back altered at a late period of the Session, when circumstances would be most favourable to achieving that object. Though not wishing to oppose the Bill, he hoped that by moving the previous question, or by some other course, the Bill would be postponed to another year.

The MARQUESS of CLANRICARDE

expressed his earnest hope that the Government would give no pledge whatever. He knew nothing more inconvenient, more irregular, and more unconstitutional than giving pledges on uncertain conditions. It was not fair to individual Peers, to independent Members of the other House, or to the Ministers themselves, to require or to give such a pledge. The question of the admission of the Jews to Parliament stood now, he considered, in a very different position from what it did before. It was admitted that the oaths ought essentially to be altered, and he should be sorry to see this encetment defeated by any Amendment in the Commons. He was prepared to support the second reading, but he would not pledge himself as to the course he might pursue if the House of Commons should determine upon an alteration. With respect to the month when the Bill would probably come back to this House, there was not a month in the year in which he had not seen Parliament sitting. The noble Earl (the Earl of Derby), he remembered on one occasion, did not find it at all inconvenient to come up in the month of August, and turn out Lord Melbourne's Government. There was no want of alacrity then on the part of the noble Earl and the noble Peers who voted with him on Lord Ripon's Amendment to the Address.

LORD ABINGER

said, the objection of the noble Lord was, that if the Bill passed through the House, it would be so managed as by a side wind to make it ultimately serve a different purpose to that for which it was professedly introduced. It was at one time the custom to attach clauses to Bills in their progress through Parliament quite inconsistent with the object of the Bills; but a proper sense of honesty had determined their Lordships to make every Bill consistent with itself by striking out the inconsistent clauses. If the present Bill should possibly come to that House with alterations which had other objects in view than those contemplated by the Bill, he trusted their Lordships would guard against such a contingency by doing as they had done on former occasions.

Bill now read 2a, and committed to a Committee of the whole House on Thursday next.

House adjourned to Thursday next.