HL Deb 21 July 1857 vol 147 cc108-17

My Lords, I rise, in pursuance of the notice that I have given, to ask my noble and learned Friend on the woolsack what is the present state of an appeal, of very great importance, which has been pending for some years in your Lordships' House—namely, the appeal of Salomons v. Miller. I am sure that it is not owing in the slightest degree to any default in my noble and learned Friend on the woolsack that this appeal has not been disposed of. But it is one of great importance, because upon it depends this most important and interesting question—whether, according to the existing state of the law of England, Jews may lawfully sit in Parliament. In the year 1851, Mr. Salomons, a gentleman of great accomplishments, of high honour, and whom I am pround to call my friend, was returned to Parliament for the borough of Greenwich. [Lord BROUGHAM: You may call him your learned friend]. And, as has been suggested by my noble and learned Friend, I may call Mr. Salomons my learned friend, because he is an ornament of our profession. He was called to the bar, and I am sure he would have been greatly refreshed and delighted by the discourse which has been delivered this evening by my noble and learned Friend opposite (Lord St. Leonards). Being of the Jewish persuasion he objected in the House of Commons to take the oath of abjuration according to the form which the statute prescribes. He would only take and subscribe to that oath by leaving out the words "upon the true faith of a Christian." The Speaker of the House, I believe, very properly intimated to him that under those circumstances he was not en entitled to sit and vote in the House. But Mr. Salomons formed a different opinion upon the law, as he was entitled to do, and he sat and voted without having taken the oath in the manner prescribed by Act of Parliament. To try that question, an action was brought against him for penalties, the Legislature having enacted that any Member of Parliament who shall presume to sit or vote without having taken the oath in the manner prescribed, shall incur for each breach of the enactment a penalty of £500. That action was brought in the Court of Exchequer. There was what is called a special verdict, by which the jury found the simple fact of his having taken the oath in the manner that I have described, leaving it to the court to say whether he had incurred the penalty or not. That special verdict was solemnly argued before the Court of Exchequer. Three of the Judges were of opinion that he had incurred the penalties, and the fourth Judge dissented; the great question being whether "on the true faith of a Christian" was the mode of taking the oath, or a part of the oath—of that which was to be sworn to. There being a majority of the court against Mr. Salomons, judgment was pronounced against him. He then appealed to the Court of Exchequer Chamber, consisting for this purpose—the appeal being from the Court of Exchequer—of all the Judges of the Court of Queen's Bench, and all the Judges of the Court of Common Pleas. That appeal came on to be heard in the year 1853. It was my duty to preside as Chief Justice of the Court of Queen's Bench. We heard it elaborately argued, and I, for one, formed my own opinion. I was clearly of opinion that the judgment of the Court of Exchequer was right. In both Houses of Parliament I have voted for the admission of Jews to Parliament. I thought that the law by which they were excluded was unjust, and I have therefore, on all occasions when the question has been introduced, voted for their being admitted constitutionally and lawfully. But sitting as a Judge, in which capacity I had not to make but to declare the law, it appeared to me that the arguments of the three Barons who decided against Mr. Salomons were unanswerable, and that it really was the intention of the Act of Parliament, when read and fairly construed, that no person should be allowed to take that oath except in the manner which is prescribed by the Act of Parliament. And I was above all induced by this consideration—that both Houses of Parliament had repeatedly put the same construction upon that oath; for early in the reign of George I. they parsed an Act in favour of the Jews, with respect to particular purposes, releasing them from swearing "upon the true faith of a Christian," where it was thought that that might be permitted. And, my Lords, I myself had proposed a Bill under which Mr. Salomons became sheriff of London,—which would have been wholly unnecessary if the words objected to were not a part of the oath. That Bill met with the approbation of both Houses of Parliament. I was Attorney General when I proposed that Mr. Salomons should be allowed to be Sheriff for the city of London. My noble and learned Friend who sits opposite (Lord Lyndhurst) did what I did not venture to do, because it was with some difficulty that the Bill to allow a Jew to fill the single office of sheriff was allowed to pass; but my noble and learned Friend brought in a Bill, which I rejoiced to have the honour of supporting, whereby Jews were enabled to hold all municipal offices of whatever description. And that met with the approbation of the Legislature. Now, these Bills would have been wholly unnecessary if a Jew could have taken the oath of abjuration without the words "on the true faith of a Christian;" and therefore the Legislature by passing those Bills clearly declared their opinion that, as the law stood, wherever the oath of abjuration must be administered, it must be taken in the form prescribed. My Lords, all the learned Judges assembled (both of the Court of Queen's Bench and of the Court of Common Pleas) concurred in the view that I have stated. And so clearly were we of that opinion that, after having heard the question elaborately argued on one side in support of the appeal, we thought it unnecessary to hear the other side; because we were convinced, by the judgments of the three Barons of the Exchequer, and I may say particularly by the very powerful and elaborate judgment of my noble and learned Friend (Lord Wensleydale), that that judgment was right, and by the unanimous judgment of the Court of Exchequer Chamber the judgment of the Court of Exchequer was affirmed. There was a writ of error brought upon the judgment of the Court of Exchequer Chamber by Mr. Salomons in the year 1854 to your Lordships' House. In the natural course of things that appeal ought to have been decided in 1855. It was not decided, however, in that year, nor in 1856. Indeed, it has not been de-decided up to this hour. It has only been appointed for a hearing. Now, I consider that it is of the greatest importance that that writ of error should either be determined or be dismissed. In the latter alternative the judgment of the Court of Exchequer Chamber would be held to be final. But, as far as I know, no step has been taken for bringing the writ of error to a hearing. In the meantime both Houses of Parliament have acted as if the decision of the Court of Exchequer Chamber were right, for the Commons have refused to allow Baron Rothschild to take his seat in their House without taking the oath according to the form prescribed by statute. More than this, there have been Bills introduced into the other House of Parliament, and sent up to this House for altering the law. When you bring in a Bill to alter the law, is not that a Parliamentary declaration of what the law is? Unfortunately, as I think, the Bills sent up from the other House for the entire emancipation of the Jews have not met with the approval of your Lordships. Yet your Lordships can hardly be blamed for this, because until the present Session there was reason to believe that public opinion was in harmony with the opinion of this House. I trust this House will ever be the rallying point of public opinion; because as long as you have the voice of the country on your side you may safely affirm or reject any proposal made by the other branch of the Legislature. But I must confess I was in hopes that the manifestation of public opinion during the present Session would have led to a different result. The measure was carried in the other House by an overwhelming majority, its supporters mustering a greater number than they ever did before. Gentlemen of great eminence, who are politically connected with the noble Earl opposite (the Earl of Derby), and among others Sir John Pakington, who had previously voted conscientiously against the Bill, voted on this occasion in its favour. I therefore entertained a sanguine expectation that the most powerful arguments of my noble and learned Friend opposite (Lord Lyndhurst) who has distinguished himself so much by his advocacy of this measure, would have prevailed with your Lordships, and induced you to assent to the removal of the Jewish disabilities. The noble Earl opposite (the Earl of Derby), of whose brilliant talent I have the highest admiration, and for whose honourable motives, I have the greatest respect, deemed it his duty to persist in his opposition to the Bill, and it was again rejected. I now expected hat the matter would have stood over till another Session of Parliament; but my attention has been drawn to the votes of the other House, and on looking over those votes I found to my great surprise a notice of Motion to the effect that, whereas Baron Rothschild has declared that the words "on the true faith of a Christian" are not binding upon him, the House of Commons should resolve that the Clerk be instructed to omit those words in administering the oath to him, and that Baron Rothschild be admitted to take his seat by a Resolution of that House—in defiance of what has been done by the House of Lords, and without the consent of the Crown. I should be very slow, indeed, in commenting on what occurs in the other House of Parliament in cases where your Lordships would have an opportunity of constitutionally discussing the question at issue. But if the Motion of the other House to which I have referred should be carried there, it will never come before your Lordships, but will at once be treated by the other House as law. This I regard as a flagrant usurpation. To use the mildest term that I can bestow upon it, I should call it nothing less than a coup d'état, such as is sometimes resorted to in a neighbouring country to bring about a revolution. A law of this description is contrary to all law, because it attempts by a Resolution of a single branch of the Legislature to repeal an Act of Parliament, and to pass a law against the expressed will of your Lordships, and without the sanction of the Sovereign. I hear that it is sought to justify this proceeding by the precedent of the election of Mr. Pease, in 1832, for the county of Durham. Being myself a Member of the House of Commons and a law officer of the Crown in that year, I took an active part in that investigation, and I venture to say that what was then done has not the smallest application to the case now to be considered. Mr. Pease was a Quaker. There was no question as to the manner in which the oath was to be taken. The real point was, whether there were not Acts of Parliament passed by Commons, Lords, and King, by which the Quakers were absolved from taking oaths and from swearing to what appears in the oath of abjuration. It was our opinion, and it is my firm and sincere opinion at this moment, that by two Acts, one of which was passed in the reign of George II., a Quaker was allowed to affirm in regard to all that appears in the oath of abjuration without swearing at all. The language of the statute is so strong, that it admits of no other construction. It declares that wherever any oath is to be taken, the Quakers are absolved from the necessity of swearing, and are allowed to affirm. At the time of the passing of that Act the same arguments were used against the Quakers as are now used against the Jews. It was said that the admission of the Quakers would unchristanize the Legislature. Petitions were presented against the measure, stating that the Quakers were not Christians; and in your Lordships' records protests will be found against the Bill on the ground that they are not Christians because they object to all sacraments, even to baptism, and the Lord's Supper. The Bills exempting the Quakers from swearing were, however, passed; and on that ground, and on that ground alone, Mr. Pease was allowed to affirm, and to take his seat with the unanimous concurrence of the House of Commons. The proceeding was therefore according to law. We then did what we believed the law required us to do. We did not make the matter one of privilege. There was no attempt to alter the law by a Resolution of the House of Commons. It was a simple declaration and determination of what the Legislature had done. There is no pretence, then, for saying that this precedent has any application to a case like the present, where the proposition has been solemnly adjudged to be contrary to law, and where it would be contrary to the decision of one branch of the Legislature, and without the consent of the Crown. Another precedent referred to relates to what took place in this House in regard to life peerages. I do not intend to revive the late controversy excited by that subject; but whether your Lordships were right or wrong in your decision upon that question, that decision has not the slightest application to this case, because in what you did you only exercised a jurisdiction analogous to that which the House of Commons itself exercises when it decides whether a person taking his seat in that House has been lawfully returned. The House of Lords did not on that occasion alter the law, but were guided by it. What then would be the consequence of the course of proceeding now suggested? The Judges cannot stop a Resolution of the House of Commons; but if an action were brought, I, or any other Judge, would be bound to lay down the law as it has been declared by the Court of Exchequer Chamber, to say that the penalties had been incurred, and to direct the jury to find a verdict for the plaintiff. There would be no difficulty in proving the fact. The House of Commons, to do it justice, offered the clearest evidence in support of the action, and every Member of that House would be bound to give evidence, and to explain what had taken place when the oath was administered. I see it has been proposed by some that a Resolution should be passed by the House of Commons, declaring it to be a breach of privilege in any person who should bring an action against a Member of the House of Commons who had been allowed to take his seat without swearing in the manner required by law. My Lords, I have been during the course of my Parliamentary life a strong supporter of privilege. I do not regret the lengths to which I went when there was a controversy upon the question of privilege between the House of Commons and the Court of Queen's Bench. But that was an action for doing that which the House of Commons, in the clearest exercise of its rights, had directed to be done. The House was bound to take up that question, and to deal with it as a breach of privilege. But to declare it to be a breach of privilege to bring an action against a Member of the House of Commons who had violated the law would be perfectly absurd. The House of Commons might just as well resolve that it would be a breach of privilege to bring an action on a Bill of Exchange against the acceptor, or to bring an action of ejectment to recover an estate that had belonged to a man and his ancestors for 500 years; the House of Commons might as well attack the prerogative of the Crown, and resolve that it would be a breach of privilege to acknowledge the appointment of any officer in the army or navy without the previous consent of the House of Commons,—or a breach of privilege to declare war, or conclude peace without their previous sanction. My Lords, if such a course should be adopted, it seems to me that a revolution threatens this country, and that it may lead to the most fatal results. If this contest is wantonly stirred up between the House of Commons and the Courts of law, I, for one, shall not be afraid of the consequences personally to myself. I hope, however, that if the House of Commons should order me to be sent to Newgate or the Tower, the people will rise in my defence and come to the rescue. I am prepared to do my duty. I have, however, great confidence in those who now direct the deliberations of the House of Commons. I have had the honour to sit in the same cabinet with two of the most distinguished leaders of that House, and I shall be very much mistaken if they give their sanction to the passing of such a Resolution. I have, indeed, read of a scheme that certain Members of the other House of Parliament are said to have come to, by which the Prime Minister is to be pressed and urged and almost compelled to agree to such a Resolution; but I have great confidence in the firmness as well as the good sense of the present Prime Minister, and I believe that he will give them a very courteous but very decisive answer, that such a proceeding would be contrary to the law and constitution of the country. My Lords, I have thought it my duty to inquire into the present state of the case of Salomons v. Miller. If the judgment of the Court of Exchequer is reversed upon an appeal to your Lordships' House, I, for one, shall rejoice—I shall rejoice to see the Jews, my fellow subjects, constitutionally and lawfully introduced into Parliament. I believe that there will be no danger from such a proceeding, but that it will take off a reproach under which we now suffer. It is, however, only by Act of Parliament that they can be introduced into the Legislature. I hope the time is not distant when such an Act may be passed, but until then the Jews must submit to the privations under which they now labour.


My answer to my noble and learned Friend's question must be very short. The writ of error in the cause Salomons v. Miller was sent down in 1854, and was to have come on in May, 1855. Nothing, however, was done, and last year an application was made from the plaintiff and defendant praying that the cause might stand over until this Session. [Lord CAMPBELL: That was an application from one party.] My noble and learned Friend may know more about the matter than I do, but the application purports to come from both plaintiff and defendant. On June 15th, in this year, a joint application was again made that the case might stand over for two months. That would carry it until the 15th of August, and it would thus most probably stand over until next Session, as judgment is not likely to be given at that period of the Session.


trusted that no such indiscreet act would be done, or attempted to be done, elsewhere as that to which his noble and learned Friend had adverted. He was no great advocate of privilege, and thought that his noble and learned Friend had carried his advocacy of privilege too far in the question at issue a few years ago between the House of Commons and the Court of Queen's Bench. It hardly seemed credible, but it was on the Journals of the House of Commons, that they had tried, by way of privilege, a right of fishery claimed by an admiral who was a Member of that House. Instead of coming to the Queen's Bench, the Admiral complained of an individual who had interfered with his fishery. The man was summoned and taken into the custody of the Serjeant-at-Arms. He acknowledged his offence, promised not to repeat it, and was dismissed on payment of the fees. The gallant Admiral by this proceeding had obtained, not a verdict and judgment by a court of competent jurisdiction, but a pre-judgement by the House of Commons, proceeding by way of privilege. He trusted that there would be no attempt to push a matter of privilege to such a length on the present question. He very much feared that if the House of Commons made a law by way of Resolution of the kind described, they would expose the person who took his seat under such a Resolution, to great inconvenience, and, he would also say, to very great loss; because, if an individual trusted to the force and sufficiency of that Resolution, every time that he was present in the House of Commons and heard the Speaker put the Question, he would make himself liable to a penalty of £500, from the payment of which he could not escape without something that he abhorred the thought of—a violent conflict between the Courts of Law and the House of Commons.


said, that with reference to the explanation of his noble and learned Friend, as to the cause of the delay in bringing the writ of error for decision before the House, it appeared that though it was fairly and honestly argued, the plaintiff and defendant appeared to have a close understanding on the matter, and whatever one suggested the other agreed to. With all respect for his friend Mr. Alderman Salomons, he must say that he thought it desirable that the case should be speedily brought to a conclusion.

House adjourned at Eight o'clock, to Thursday next. Half past Ten o'clock.