§ LORD LYNDHURST
said, that when first this Bill came up from the other House it was not his desire to have anything to do with it. He certainly did not approve the form in which the Jewish Disabilities Bill went down to the other House, but he did not think it respectful to their Lordships to ask them so soon to reverse their decision. When, however, he found that the Amendments which he suggested and which he now intended to move would be assented to, he consented to take charge of the Bill. It was their Lordships' intention, in passing the Jewish Dissabilities Act, that a Resolution by the House of Commons should become a permanent provision. It turned out afterwards that the House of Commons had no power to make such a provision permanent and that the Resolution must be renewed every Session. To obviate the inconvenience it was thought that the Resolution might be turned into a Standing Order. But the Speaker was of opinion that the House of Commons had no power to convert a Resolution originating in an Act of Parliament into a Standing Order. This Bill did not go further than to carry into effect the intention of their Lordships, and to enable the House of Commons to convert the Resolution into a Standing Order. The Amendment which he should propose in Committee would be this—Whenever the House of Commons shall order that any Resolution, pursuant to the first Section of the said recited Act in the same Session, shall be a Standing Order of the House, any Member professing the Jewish religion may thenceforth be sworn pursuant to such Standing Order as long as the same shall continue in force.Their Lordships would perceive that in fact the Bill would enable the House of Commons to do that which it was supposed by this House, when the Act passed, they had the power of effecting—namely, converting the Resolution into a Standing Order, so as to prevent the necessity of renewing it at the commencement of every Session. After the Bill had passed through Committee pro formâ and the Amendment was inserted he proposed to reprint it.
§ LORD CHELMSFORD
said, that the Bill, although a short one, and apparently of a very unpretending character, was nevertheless one of considerable import- 1746 ance, and which certainly ought not to have arrived at this stage without receiving more notice than had yet been given to it. He had given an intimation to his noble and learned Friend that although he did not intend to oppose the Bill, he wished to make some observations upon it. He supposed he was not understood, for the second reading had taken place without his having had the opportunity of making his remarks; and therefore, although what he had to say would have been more applicable to the second reading, he trusted their Lordships would indulge him in the few observations which he wished to offer on the kind of legislation which the House of Commons proposed by this Bill. Their Lordships must recollect that, pending the discussions which took place in that House on the long-agitated question of the admission of the Jews into Parliament, a noble Earl (the Earl of Lucan) came forward as a peacemaker, and proposed an arrangement by which each House would be at liberty to exercise an independent course of action by a Resolution, and if it thought fit, when any person professing the Jewish religion presented himself at the table to be sworn, those important and well-known words "On the true faith of a Christian" might be omitted. As he understood the compromise, it was not the intention of the Legislature that any Resolution passed by the House of Commons should have the force of an Act of Parliament. The intention, as he understood it, was that the Resolution should be binding on the House of Commons during the Parliament in which it was adopted, and not beyond. From the part which he (Lord Chelmsford) had taken for so many years in this important question, he was not at all pleased with the arrangement; but finding that a great majority of their Lordships were anxious for some settlement, he offered no opposition, although he felt at the time it never could be considered anything more than a temporary arrangement, not a final settlement of the question. However, the Act of Parliament passed; and he certainly was very much astonished to hear that any difficulty had arisen as to its construction. It seemed to him to be so very clear and plain that it required great ingenuity to find a different meaning from that which the Legislature intended. It was the intention—and he thought the intention was very clearly expressed in the Act—that the Resolution should continue in force 1747 during the Parliament in which it was passed if not repealed. But he understood it was the opinion of a very high authority in the House of Commons that the Resolution was only operative in the particular Session in which it was passed, and that it would not continue in operation during the continuance of a Parliament. He (Lord Chelmsford) on the contrary apprehended that the Resolution would have the effect which every Resolution passed by the House of Commons would have, which was, as he understood, that it would continue during the continuance of the Parliament which passed it, unless previously repealed. And that was the intention of the Legislature in passing the Act. The words of the Act were,Where it shall appear to either House of Parliament that a Person professing the Jewish Religion, otherwise entitled to sit and vote in such a House is prevented from so sitting and voting by his conscientious Objection to take the Oath which by an Act passed or to be passed in the present Session of Parliament has been or maybe substituted for the Oaths of Allegiance, Supremacy, and Abjuration in the Form therein required, such House, if it think fit, may resolve that thenceforth any Person professing the Jewish Religion, on taking the said Oath to entitle him to sit and vote as aforesaid, may omit the Words 'and I make this Declaration upon the true Faith of a Christian,' and so long as such Resolution shall continue in force the said Oath, when taken and subscribed by any Person professing the Jewish Religion to entitle him to sit and vote in that House of Parliament may be modified accordingly.However, it was the opinion of a high authority in the Commons that this Resolution would only have this effect during the Session in which it was passed; and accordingly they appealed to their Lordships for some assistance to obviate this unsettled state of things, and they had sent down this Bill, which certainly went very far beyond their Lordships' original intention that neither House should interfere with the other, and that each might independently pass a Resolution to enable a Jew to take his seat: whereas the House of Commons applied to their Lordships to consent to a law by which permanently any person professing the Jewish religion might omit the words "upon the true faith of a Christian." He was not surprised that his noble and learned Friend had positively refused to take charge of the Bill unless the Amendment which he had read were introduced. They had, of course, entire confidence in his noble and learned Friend, and, therefore, it might be assumed that that would be the shape of 1748 the Bill. As he had already intimated he considered the Bill in that form entirely unobjectionable. But he could not withhold a remark or two on the unnecessary character of this Amendment. If he were right in his construction of the Act, the Resolution which the House of Commons was enabled to pass was binding during the Parliament, unless there was a decision to the contrary. It was proposed by the Amendment that the House of Commons should have the power of making their Resolution a Standing Order. He did not know that any greater effect would be given to their Resolution when it was converted into a Standing Order than what it had during the time it existed in the original form of a Resolution. Upon that point there was a great authority in their Lordships' House, to whom he would appeal.
A Resolution of the House, strictly speaking, would not be valid beyond the Session during which it was passed. A Standing Order would remain valid in succeeding Sessions until repealed.
§ LORD CHELMSFORD
If that was the case, there could be no objection whatever to their Lordships agreeing to the Amendment of his noble and learned Friend. As they were treading on rather delicate ground in legislating with regard to the House of Commons, he trusted, however, that his noble and learned Friend had the sanction of the authorities of that House for the alteration he proposed.
strongly recommended their Lordships not to dissent from the Bill as proposed to be amended by his noble and learned Friend. That their Lordships had the clear and undoubted right to reject the Bill, he held to be so clear a proposition as to require no enforcement by argument. That their Lordships had the power to reject any Bill sent up from the other House, in the whole or in part, he held to be incontrovertible. A Bill sent up from the House of Commons for imposing a tax, they had a right to refuse—to refuse the tax. A Bill sent up to repeal a tax, their Lordships had a right to refuse, and thereby to insist that the tax continue. If a Bill was sent up from the Commons enacting one tax and repealing another their Lordships had a right either to reject that Bill altogether, and require the tax to remain in its existing shape, or to reject part and adopt part—to reject the part which imposed a new tax and to adopt the part which repealed an old tax. He knew that it was not 1749 usual to do so. He knew that it was contrary to the usual course of legislation in the two Houses that their Lordships should take that course; it was contrary to precedent, right or wrong, to take that course; but that it was their undeniable right he had not the shadow of a doubt. Nay, he would go further, and say that their Lordships had a right to originate in their own House a measure enacting a tax and to send it to the other House: "Whereas it is expedient that a certain sum shall be levied by a tax on the people in order to meet the exigencies of the public service: be it, therefore, enacted;" and the Lords passed a "tax" Bill. He (Lord Brougham) would not say that the other House would give such Bill a very cordial reception: he would not take upon himself to say that they would give it even a respectful reception: probably the Commons would reject it altogether. They might reject it in not the most courteous manner. Nay, probably they might treat it as Bills of this description had been treated before in the other House, and actually throw it out by bodily force. And so also it was the undoubted prerogative of the Crown to refuse the Royal Assent to any Bill, even though sent up from both Houses of Parliament without a dissentient voice in either. It was an undeniable right of the Crown to refuse its assent. No doubt the Ministers who advised the Crown so to refuse assent to such a Bill would be answerable to the country for the advice which they gave their Sovereign; but that the Sovereign had an undoubted right so to refuse assent he held to be a perfectly clear proposition.
rose to call the noble and learned Lord to order. His observations had nothing to do with the question before the House.
said, it would be seen to be applicable enough when he came to apply his argument to the Bill before them. He would not say he should make it clear to the understanding of the noble Lord, but he would undertake that it should be clear to the understanding of 99 out of every 100 who might hear or read what he was now saying. He held it to be the right of every branch of the Legislature—of the Crown, of the Lords, of the Commons—to take such a course; but it was a different thing to say that in any given case that power should be exercised, and he held that in some cases the exercise of an undeniable right might be as inexpedient though not so illegal or 1750 unjust, as the exercise of that which was no right but a wrong; and he held that to reject this Bill, which dealt entirely and singly with proceedings of the other House of Parliament, which applied to the manner of taking their seat by Members of that House, which carefully excluded all reference to the House of Lords, which was simply and solely a Bill for regulating matters respecting only Members of the other House of Parliament taking their seats; to reject this Bill he held would not only be inconsistent with former precedent, but inconsistent with the respect due to the House of Commons, and inexpedient in every point of view. The right of their Lordships to do any act did not prove any the least justification of doing that act. Their proceedings, though quite lawful, might be both inexpedient and unconstitutional. The Bill gave effect to what was understood at the time to be the intention of this as well as the other House of Parliament; and he (Lord Brougham) thought that the mode in which the Bill intended to give effect to that intention, now that a difficulty had arisen, was unexceptionable.
§ House in Committee.
§ Amendment agreed to.
§ The Report thereof to be received Tomorrow.