HL Deb 05 July 1858 vol 151 cc916-30

Order of the Day for the House to be put into a Committee, read.

Moved, That the House do now resolve itself into a Committee.


My Lords, I do not rise for the purpose of opposing your going into Committee upon this Bill. After the division of last Thursday, I am bound to say that the opinion of the House appears to be so decidedly pronounced against the further exclusion of Jews from Parliament, that I should not be justified in obstructing the further progress of the Bill. My object in now addressing your Lordships is to endeavour to obtain from the noble Earl at the head of the Government answers to two inquiries that were embodied in my address to your Lordships on Thursday last, upon which I thought and still think the House ought to have received information in the course of that debate. The noble Earl, however, did not take part in the debate, having adopted the somewhat unusual course of making a previous address to your Lordships upon the two Jew Bills at the time awaiting a second reading, and of practically deciding the new issue about to be proposed respecting the admission of Jews to Parliament before the question was submitted. I am quite sure the noble Earl had no other object in so departing from the usual forms of the House, but that of expediting public business; but it should not have prevented his discussing the Bill when it was brought regularly before the House. Had he done so, I should probably not now have had occasion to recall attention to it. Your Lordships will recollect that the noble Earl recommended the Bill to your favour as a measure calculated to terminate in a satisfactory manner a difference of long standing between the two Houses of Parliament, an object which he appeared to consider of paramount importance. Admitting, my Lords, that it is very desirable that a good understanding should exist between Lords and Commons, and that therefore this House should not oppose itself without good reason to any decidedly expressed wish of the other House, I cannot think that you are justified in giving way in the present case. There is a first as well as a third estate of the Legislature, and I cannot help apprehending that your Lordships in seeking to terminate your controversy with the Commons, by conforming to their wishes regarding the admission of the Jews, may be unwittingly committing the grave error of uniting the two Houses of Parliament, the second and third estates of the Legislature, in a course opposed to the conscientious convictions of the highest estate. We know that practically the Crown does not, and could not, without serious inconvenience, act independently of the two Houses of Parliament by putting a veto upon what they jointly recommend; but this acquiescence in the views of the Lords and Commons of the realm must have a limit where there may exist a conscientious objection upon religious grounds to any Bill proposed for the Royal consent. It is well known that George III. entertained such objections to the admission of Roman Catholics to sit in Parliament, and that he would have exercised his prerogative in withholding his consent from any measure presented to him for that purpose, had the occasion for it arisen; it is also known that during the first years of his reign, George IV. entertained similar objections, and this House, I believe, on more than one occasion, stood between the desire of the House of Commons and the scruples of the King, with regard to the removal of the disabilities of his Roman Catholic subjects; and, by rejecting the Bills sent up from the other House, saved the King from being obliged either to have recourse to an independent exercise of the Royal prerogative, or to violate his conscience. But when the consideration of the Catholic claims was recommended in a gracious speech from the Throne the case was changed, the consideration of the question was then relieved of one great difficulty, and the measure called "Catholic Emancipation" soon after received your Lordships' concurrence. The course pursued in that great and important change in the constitution of the legislature was highly commendable, and ought to be followed in every similar case, not only to save the Crown from any difference with the two Houses of Parliament, but as a means of insuring a careful consideration by the responsible Minister of the Crown of what Parliament may be called upon to do, and of affording to the public the best notice of the change proposed to be made; but it is especially desirable in a case, such as the present, where it is proposed to confer a great boon upon a particular class of the subjects of the Crown, that the proposition should originate in a gracious Message from the Throne, instead of allowing an act of grace, to which the Crown gives a willing consent, to have the appearance of either having been extorted by the will of the two Houses of Parliament, or to have the appearance of being of too little consequence to receive at the hands of the Sovereign any other notice than might be bestowed upon the passing of a railway Bill. I suggested, therefore, in the course of my address to the House last Thursday, that your Lordships should consider and satisfy yourselves regarding the position of the Queen as Temporal Head of the Church, as bearing the title of Defender of the Faith, and as the Christian Sovereign of a Christian people, whether, in the event of your passing this Bill, she might not object to take counsel in the fulfilment of the high duties of her exalted station with those who deny the Christian faith, whether she might not object, as conscientiously as any of your Lordships have objected, to the admission of Jews to sit and vote in Parliament, and whether, if she does so object, she might not retain and act upon her convictions with greater consistency than you have done. It would be satisfactory, I think, to the House, as no indication of the Royal mind upon the subject has been conveyed to Parliament in the ordinary manner, to be informed whether the noble Earl, in recommending your Lordships to accept as a solution of the Jew question, the Bill now under consideration, has done so with the approval of the Sovereign, and if not, whether he is nevertheless prepared to advise Her Majesty to give her Royal assent to its enactment. The other point upon which I had hoped to have received an answer in the discussion last Thursday, and which I think most material to the consideration of a Bill recommended, as this was, as a final settlement of the Oaths question, is whether the noble Earl in so recommending it had duly considered in what condition it would place the Roman Catholic Members of Parliament by the side of those of the Jewish profession, that while by the terms of the oath the law at present imposes upon him the Roman Catholic is precluded from exercising any privilege to which he is or may become entitled, to weaken or disturb the Protestant religion or Protestant Government in the United Kingdom—the Jew is allowed the fullest freedom of legislative action to operate, if he so chooses, not only against the Protestant Church, but for the overthrow of Christianity itself, the difference of the liberty accorded to those who are professedly Christians, and to those who are professedly not Christians, is very marked. Is the noble Earl prepared to maintain it? Is he fully prepared to resist the agitation already commenced for the repeal of the Roman Catholic Oath—an agitation which the passing of this Bill will immensely increase? The noble Earl can hardly have overlooked the points to which I have ventured again to direct your Lordships' attention. Having undertaken a leading part in opposing this Bill, I shall be excused, I am sure, by the noble Earl if, in the fulfilment of a public duty I press for the information that the House is entitled to receive at his hands, considering the responsibility he has accepted regarding this Bill, and the position he holds in the government of the country. Nothing can compensate for the sacrifice of principle involved in the measure; but it may, in some degree, reassure the public with regard to its consequences if the noble Earl can return satisfactory answers to the questions I have submitted.


drew attention to the circumstance, that under the Roman Catholic Relief Act any Roman Catholic who might rise to the highest judicial or ministerial position was not entitled to present to benefices; but that the proposed measure placed no restriction upon Jews, although it would be competent for a member of that persuasion to obtain a seat in the House of Commons and to become Prime Minister. The first Bill which was introduced upon this subject by the noble Lord the Member for London (Lord John Russell) contained clauses by which Jews who were returned to Parliament bound themselves, as the Roman Catholics did, not to use any efforts or powers of which they might become possessed to the prejudice of the religion of the country as by law established; but there was no such provision in the present measure. He thought that it would have given general satisfaction to the country if some securities had been taken to prevent the abuse of powers with which the non-Christian portion of the community were now for the first time to be intrusted. At all events they had no claim to be placed in a better position in this respect than our Catholic fellow subjects.


said, he was so satisfied of the unconstitutional nature of the present Bill, that—without questioning the decision of the House or raising any objection at this stage to the relief that had been granted—he could not refrain from once more calling their Lordships' attention to the mode of their proceeding. After all that had passed, he did not mean to object again to the admission of the Jews to Parliament, though he retained those objections as strong as ever; but he invited their Lordships to reconsider the mode in which it was proposed to be done. It was an evil precedent to give permission to either of the two Houses to Act by a Resolution of its own; though he owned it presented an easy method of "settling," as it had been called, the difficulty, and they were all too ready to consider what was easy for the moment without considering the danger of the precedent they were setting. But what evil there might be in precedent might be learned from an incident that had occurred in the other House with regard to this very Bill. Many years ago a Member of Parliament, who was absent on the Welsh circuit, was appointed a member of Committee without having taken the oaths. He (Lord Redesdale) did not believe that he had acted in Committee without taking the oaths, but there was no proof of the fact, and the consequence was, that Baron Rothschild was allowed to act on a Committee without having taken the oaths. Thus one concession followed another, and it was impossible to say what they might come to. The practical effect of this Bill would be that Jews would be admitted by it into the other House of Parliament. Well, why not do that directly by Bill? Now, there were solid objections that might be urged for confining the operation of such a measure to the other House of Parliament; the Members there were elected by the voice of a constituent body, and they were returned only for seven years at a time; but he could see no reason why they should not do what they proposed to do by a direct legislative enactment, instead of by the unusual and unconstitutional method of sanctioning proceeding by a Resolution of a single House of Parliament. He did not oppose the object of the Bill, much as he disliked it, but he opposed the way in which that object was proposed to be accomplished.


was understood to oppose the Bill, on the ground that, if passed into a law, it would give admission to Jews, Turks, infidels, and heretics.


said, he could see no force in the objection of the noble Lord the Chairman of Committees. It was quite common for Resolutions, not of a House of Parliament, but of a Court of Justice, to have the force of law. Scarcely an Act was passed for improving the procedure of the courts of law, but power was given to the Judges to frame rules for carrying it out, and these rules virtually became a portion of the statute. He did not think the present was the best course that might have been adopted, and thought it would have been better to accept the proposition of his noble and learned Friend (Lord Lyndhurst); but still it was a course to which he saw no solid objection. He found that he had somewhat misstated the object of the Bill on another subject, which might be expected from the other House. At present it applied only to Members of the House of Commons, but he had no doubt that the first thing their Lordships would do, when it came before them, would be to make it include themselves.


I feel some little difficulty, my Lords, in replying to the different objections with regard to various portions of the Bill now before your Lordships, and which have been alluded to by noble Lords rising one after another; and that predicament, or rather difficulty, has been somewhat increased by the noble Lord, who entered on a discussion with regard to another Bill, on which my noble and learned Friend (Lord Brougham) has made some little divergence from the ordinary mode of proceeding, on the principle, it might be supposed, of having a few more last words. I will do my best, however, to answer their different objections. I hope it may not be supposed that in abstaining from offering any observations in the course of the discussion that took place the other night that I had the slightest wish to treat with disrespect or want of consideration the observations or arguments that fell from the noble Earl behind me, against the second reading of the Bill. My noble Friend (the Earl of Clancarty) asked me two different questions, or rather he has suggested two different objections to the course now proposed to be taken. In the first place, he states his opinion that in seeking to reconcile the opinions of the Houses of Lords and Commons we shall bring both Houses into collision with the Crown. Now, my Lords, on a question of that kind, involving as it does a political question, I am quite sure that the last thing my noble Friend desires, and that which, in the opinion of the noble Lord and of your Lordships, would be the least consistent with propriety of principle, would be to canvass in Parliament the personal opinions of the Sovereign of this realm; but all I have to say is, that I have not the slightest reason to suppose that, if the House of Lords or Commons should think fit to pass either or both these Bills, Her Majesty would have the slightest disposition to interpose Her prerogative for the purpose of preventing this Bill becoming law. I have no reason to suppose that Her Majesty entertains such an opinion: and certainly I have no ground for entertaining any apprehension that the course of proceeding now adopted would be likely to bring the two Houses into collision with the Crown. My noble Friend says if it had been the intention of Her Majesty's Ministers to recommend an alteration in the laws with regard to the admission of Jews into Parliament, that the proper course would have been to send down a Message from the Crown, intimating that such was the view they took. But he appears to forget, that, even admitting there were any force in the argument in any case it entirely fails in this, because neither the one Bill nor the other—neither the Bill introduced into the other House nor the Bill introduced into this—were Bills introduced on the part of the Government at all. The first Bill was originally introduced in the House of Commons, and, so far from conferring the boon on Gentlemen of the Jewish persuasion, the course of action your Lordships took was to strike out those clauses which proposed to confer on the Jews by Act of Parliament the advantage which the Bill from the Commons proposed to confer on them. Then my noble Friend (the Earl of Lucan) proposed another course, which appeared to him susceptible of reconciling the differences between the two Houses—namely, that of enabling the House of Commons, with regard to the admission of its own Members, to take its own separate course, and leaving to the House of Lords the power and the privilege of taking its own course, in conformity with its own predeclared and separate opinions, with regard to the admission of Jews. Another objection taken by the noble Earl, was, that the introduction of certain words into this Bill places the Roman Catholic Member on a footing of inferiority compared with the Jews, and he asked whether I was prepared to meet the agitation and excitement which would naturally arise in consequence of this, and whether I was prepared to maintain the provisions of the Act of 1829. My only answer to that is, that I do not conceive that by this Bill the Roman Catholic is placed in the slightest degree in a position of inferiority to the Jew. Now, a provision was introduced into the Act of 1829 for the purpose of meeting a very generally entertained objection on the part of Protestants. They were apprehensive that the Roman Catholics, being a rival body within the Christian Church, were naturally hostile to the establishment and temporalities of the Protestant Church of England and Ireland, and it was feared that they would avail themselves of their position in Parliament for the purpose of injuring the temporalities of the Establishment, and injuring the Establishment itself; and, consequently, with the entire and unhesitating assent of the Roman Catholic body words were admitted into the Bill which bound them in the strictest manner to make no use of any Parliamentary privilege or position for the purposes apprehended, and to that extent they were required to disclaim it—in the oath. I have no reason to suppose that any dissatisfaction has arisen out of that, although individual Members have objected to it. But I cannot by possibility conceive that any such analogous question can arise out of the admission of the Jews into Parliament. No such question has arisen. No such question of rivalry can arise between the Jews and the Protestant Church, or any desire on the part of the former to overthrow or interfere with the temporalities of the latter. The Jews, no doubt, believe the Christian religion to be an erroneous religion, but I never yet heard imputed to the Jewish persuasion a desire to interfere with the temporalities or status of the Church as by law established in England. Therefore it was not thought necessary to take any security against a danger which no one ever apprehended. My noble Friend on the cross benches (the Duke of Marlborough) has referred to the limitation placed upon Roman Catholics with regard to offices in the Church and elsewhere. Now, with regard to the power exercised by persons of the Jewish persuasion, my noble Friend is aware that the Bill makes no alteration whatever; but I think it right to mention that since this question has been under discussion, I have been in communication with my noble and gallant Friend who introduced the Bill (the Earl of Lucan), and I pointed out to him, that whereas his Bill gave a limited power of admission into the House of Commons to members of the Jewish persuasion, and which had been struck out by your Lordships from the Bill as sent up from the House of Commons, it was absolutely necessary to insert in this Bill the same clause that was omitted from the former Bill—namely, that which excluded persons of the Jewish persuasion from holding those same offices from which Roman Catholics also are excluded. It was therefore found necessary to reintroduce a clause upon this point. A good deal of discussion has taken place with regard to the possible effect of the Bill as amended by your Lordships, and sent down by the House of Commons, rendering it necessary for persons of the Jewish persuasion to take the oath of abjuration in certain cases in which they are not now by law required to take it—or rather they were required to take an oath which is substituted for the oath—of abjuration and for the oaths of allegiance and supremacy—in cases where, by an alteration in the law, they are now enabled to take the oaths of allegiance and of supremacy, and not the oath of abjuration, being covered, within the period necessary that they should take it, by the annual Act of indemnity. I have also been in consultation with my noble and learned Friend on the woolsack, who, though be entertains a different opinion, nevertheless thinks that there is sufficient doubt with regard to the question to justify the introduction of a clause which shall clearly show that your Lordships have no intention to impose additional restrictions on members of the Jewish persuasion, and such a clause will accordingly be introduced. Much has been said with reference to proceeding by Reso- lution; and no doubt this Bill makes it competent for either House to do so; but it will confer on either House the right, not to pass a general Resolution for a general purpose, but if it should think fit to pass in a specified case a Resolution for that specific purpose. Beyond that the provision does not go, and it only enables the House, when they think fit, to do that by Resolution which they cannot do without an Act of Parliament, and which is strictly limited and defined by the terms of the Act of Parliament itself. My noble Friend (Lord Redesdale) said, do you not believe that this will not practically be introducing the Jew equally to the Houses of Lords and Commons, and that your Lordships will find it necessary to pass a Resolution dispensing that privilege in his favour? Now, I look upon it in rather an opposite light. I look upon it as placing an obstacle in the way of the prerogative of the Crown, and that it will be a moral restraint on the prerogative of the Crown to create a Jew Peer, if it be known by the law that a Jew, when so created a Peer, cannot take his seat in your Lordships' House. My noble Friend's proposition comes substantially to this—that by Act of Parliament a Jew can be admitted to the House of Commons, and excluded from the House of Lords. I do not see how such an Act of Parliament could be maintained; but I do not see that your Lordships abandon in this case the views you have entertained, and which, in your own judgment, lead you to the conclusion that it is not desirable or advantageous that the Jew should exercise the right of sitting and voting in Parliament, either in this or in the other House; but what you do virtually is this, you say to the House of Commons, "We retain our opinions, and we send you our reasons for retaining them, and why we object to the sitting of Jews in Parliament; but notwithstanding, in deference to your long and frequently expressed opinion, a difference of opinion fortified by increasing majorities during a period of ten years, and during five successive Parliaments, while we distinctly admit that the main question has never been distinctly put to the constituencies of the country, and while we cannot tell whether those constituencies do agree with the House of Commons or not. Nevertheless, if you think it fit that the law shall be altered and altered in this particular only, we will concur in an Act of Parliament to dispense with the operation in the law in this particular instance." My noble Friend objects to the power given to the House of Commons of dispensing with the law by Resolution. But I will refer to the known effect of a Resolution of the House of Commons in effecting a suspension of the law. There is no law to prevent your Lordships voting for a Member to serve in Parliament. The law says that any person, being possessed of certain qualifications, shall have a right to vote for the election of a Member of Parliament; and what is there that prevents your Lordships from voting? I believe that no returning officer could refuse to receive your vote.


A Peer has no right to vote, by the common law of England, for the election of Members of the House of Commons.


I certainly must say, that while I receive with great respect, it is also with great surprise, that opinion of the noble and learned Lord. I certainly was of opinion that there was no law to that effect, and that that which alone prevented a Peer's vote from being received before the House of Commons was a Resolution of the House of Commons itself.


The Resolution only declares the common law.


I certainly should bow with deference to the experienced legal opinion of the noble and learned Lord, if I had not heard strong expressions of dissent from another noble and learned Lord (Lord Lyndhurst); but when such eminent legal doctors differ, who amongst us shall decide? But now, with regard to the difference between proceeding by Act of Parliament and by Resolution, there is this very broad and prominent difference and distinction. If you proceed by Act of Parliament you give to the Jew the absolute right of sitting in the House of Commons. If you proceed, as proposed by the present Bill, retaining your objections and the reasons why you think it unadvisable, but at the same time deferring, I will not say to the authority, but to the opinion of the House of Commons—if you permit them to pass a Resolution allowing the Jew to enter that House, and that House only, by the omission of certain words required by law, the Resolution is only good and valid so long as it remains unrescinded by the House of Commons, and the Resolution is only good and valid during the Parliament that passes the Resolution. Consequently, if upon an appeal to the constituencies at large there should be a strong feeling against the admission of Members of the Jewish persuasion to serve in Parliament, that opinion so signified by such constituencies would have the effect of rescinding the Resolution if at the wish of the House of Commons; whereas nothing short of an Act of Parliament would have the effect of rescinding an Act for the Admission of Jews, either into this or the other House. I consider, therefore, that the mode of proceeding by Resolution, limited and defined as it is by the Act of Parliament which confers the power to pass Resolutions, has this advantage—that it leaves it optional to the House of Commons to pass or not to pass it; and moreover that it leaves the whole subject open for the consideration of the constituencies at a general election, and whether a future House of Commons should confirm the judgment of the present, or consider that the vote should be rescinded. After a general election, if the attention of the country and the constituencies is directed towards the specific point, which I have no doubt it would be, then the opinion of the House of Commons may really be taken to be the exponent of the opinions of the country on the subject. If that opinion should be favourable to the admission of the Jews, that Resolution would of course be confirmed, but if adverse would be rescinded. The result will be, that the House of Commons will not avail themselves of the liberty given them by the Act of Parliament, but the Act itself, the law of the land, excluding Jews from sitting in this or the other House, will remain unaltered; the only exceptional permission given to the House of Commons will fall to the ground, and the law will remain as it stands. For these reasons, and consistently, I think, with the view your Lordships have taken of the subject, and with the objections you still continue to entertain to the admissions of Jews into Parliament, combined at the same time with your Lordships' desise to meet the wishes of the House of Commons and to enable them to act with regard to their own judgment in reference to their own House, I think the course suggested by my noble and gallant Friend is one that, better than any other, meets the difficulty—I will not say altogether satisfactorily, and I do trust that your Lordships will assent to sending these Bills down together, as inseparably connected, to the other House, and in order that this much-vexed question may be brought to a final and satisfactory termination.


rejoiced in the prospect of seeing this long-vexed and agitated question brought to a conclusion. In reference to what had been said on the subject of the authority of Resolutions passed by either House, he had to observe that the Resolutions of neither House of Parliament altered or affected the law of the land. The Resolutions of the House of Lords or of the House of Commons affecting to alter the law of the land would, in Westminster Hall, be regarded as so much waste paper. It was not by Resolution of the House of Commons that Peers were prevented from voting for representatives in the House of Commons, but it had been an ancient, immemorial law of England that Peers sat in their own right in their own House, and had no privilege whatsoever to vote for Members to sit in the other House of Parliament. Since the Reform Bill passed Peers had frequently sought to register their votes for the election of Members of the House of Commons; but the revising barristers had invariably and most properly refused to allow them. Such Resolutions would be regarded as nonentities, and, whatever the consequences, he should, in his capacity as judge, direct a jury to give their verdict totally apart from such Resolutions. He would submit to their Lordships whether it would not be better that their Lordships should pass the Bill of the noble and gallant Earl with the Amendments suggested by the noble Earl (the Earl of Derby), and allow the other Bill to fall into oblivion. Otherwise he did not see how Reasons were to be framed consistently with the dignity of the House for rejecting the Bill of the Commons while they agreed to the Bill of the noble and gallant Earl. The abjuration oath would still have to be administered in the other House; but it would only be for a very short time. He believed, after all that had been said, that the proper course would be simply to repeal the oath of abjuration. That oath was agreed to late in the reign of William III. It was not introduced at the time of the Revolution, and its object was to protect the reigning Monarch against the family of the new Pretender. There was no such family at present in existence, and all classes looked with loyalty and admiration to the dynasty now upon the throne.


said, it did not clearly appear what the Amendments of the noble Earl were to be; but he supposed they would be printed, and that there would be an opportunity of considering them at a future period. As far as he understood the Amendments, they would make the Bill resemble the measure which at the suggestion of his noble Friend the Earl of Derby he had himself laid upon the table. He believed that the clauses would be in substance precisely the same, and that there was no difference between the course he had proposed upon the suggestion of his noble Friend and that which the noble Earl now himself proposed to take. He could not conceive that his noble and gallant Friend could be the author of this Bill, because he would have gone straight to the mark, instead of approaching it in so circuitous and involved a manner; it was clear that the noble and gallant Earl had consulted some professional adviser—some gentleman accustomed to be paid according to the number of words. Their Lordships might have supposed that this gentleman before he drew the clause referring to the oath of abjuration would have looked to that oath. When he was taking certain words out of the oath, leaving a residue to be sworn to, the party who dictated the words to be taken ought to have been accurate. The clause appeared to be very precise, because the word "and" was struck out. It enacted that any person professing the Jewish religion might omit the words "and I make this declaration upon the true faith of a Christian." After these words were struck out the rest might be sworn to. But these words to be struck out were not in the oath of abjuration. The professional person whom the noble and gallant Earl had consulted had not taken the trouble to read the oath of abjuration, but had taken the words of the oath from the Bill of the House of Commons, and that was the ground of the blunder he had committed. He had looked through the Bill with considerable care, and he was convinced that the gentleman who drew the Bill of the noble and gallant Earl was paid for the words in every instrument he drew. He advised the noble and gallant Earl to amend the clause by striking out the unnecessary rubbish, and by making the recital of the words of the oath of abjuration correspond with the oath itself. He had thought it his duty to point out these objections to his noble and gallant Friend's Bill; and he was sure his noble and gallant Friend, so far from being of- fended, would take in good part what he had said, as he could not have been the author of a Bill so illegally and so improperly framed.


thought it would have been more regular if his noble and learned Friend had allowed the Bill to go into Committee, and then proposed the alterations which he had pointed out. He would ask the House to go into Committee merely pro forma, in order that the Amendments to be introduced might be printed, and the Bill re-committed on a future day.

Motion agreed to; House in Committee accordingly; Bill reported, without amendment; Amendments made; and Bill recommitted to a Committee of the Whole House on Thursday next.


stated that he would postpone his Bill sine die.

House adjourned at a quarter past Eight o'Clock till To-morrow, half-past Ten o'Clock.