HL Deb 22 June 1863 vol 171 cc1228-34
LORD CAMPBELL

said, that the difficulty of engaging the attention of the House to the subject of his notice, after the much more interesting topics they had recently debated, was so great that nothing but a sense of duty would have led him for a moment to attempt it. To guard himself in some degree against the charges of rashness and presumption, he might mention that since the general election of 1847, which had forced the question of the oaths on the public and on Parliament, his attention had happened to be very much directed to it. He should ask the House to read a Bill for the first time, and give, as rapidly as possible, an explanatory statement of its objects, having no intention or desire to proceed to any further stage during the Session. The uncertainty of being able at any future time to offer such an explanation alone induced him now to trespass on the goodness of their Lordships. There were only three points on which it was essential that he should gain the concurrence of the House:—First, the necessity of revising and amending the arrangement of the oaths formed in 1858, when they were last adjusted; secondly, on the principle which ought to govern such revision and amendment; thirdly, on the safest and the most convenient application of the principle. And it was only on the first of these three points that it was requisite to dwell, not with length indeed, but with anxiety. If a clear and obvious case for further legislation was established, an imperfect and erroneous scheme would not be viewed with harshness or severity; if no sufficient reasons were advanced for agitation of the subject, a Bill, however perfect it might seem in principle and detail, would very justly be resented by their Lordships, inasmuch as the great and the established principle of Quieta non movere would then have been improperly departed from. It was difficult for noble Lords to summon the year 1858 to their memory, intercepted as it was by the size and splendour of the objects which had since then demanded the attention of the world. But if we had imagination to revive it, if noble Lords could suddenly transport themselves into its discussions and its conflicts, no argument would be necessary to show that the conclusion then arrived at on the oaths was temporary and provisional. What was the arrangement? Two Acts of Parliament were carried by Lord John Russell and Lord Lucan. The first created a new oath with a profession of Christianity appended to it. The second gave both Houses of Parliament the discretionary power to exempt Jewish Members (no one else) from making the profession appended to that oath, but not from making the profession appended to any other. The arrangement was substantially unchanged, although two further Acts of Parliament—one in 1859, one in 1860—had immaterially modified it. How did it arise? Lord John Russell carried through the House of Commons a Bill by which Jews would have become admissible to Parliament. The House of Lords amended it in such a way as to exclude them. Much controversy arose between the Houses and much excitement in the country. Mr. Thomas Duncombe, suddenly relying on a precedent, persuaded the House of Commons that Baron Rothschild might sit upon Committees without subscribing to the oaths. So great was the perplexity that a solution then appeared to be essential, no matter how crude, or hurried, or anomalous, provided it would give at once at least a respite to the discord of the Legislature. Lord Lyndhurst and Lord Lucan both came forward with proposals. That of Lord Lyndhurst was withdrawn, that of Lord Lucan was amended, and in a great degree transformed, at the request of the noble Earl who then led the Government. The Bill which the Commons had sent up, and that which their Lordships had originated, were at last so interwoven as to be essential to each other, and in that way reached the statute-book together. He had given the outline of what took place in 1858, in order to explain that the result did not represent the mind or judgment of any one who took part in the discussion in Parliament or out of it. It was not the plan of Lord John Russell or Lord Lyndhurst, or Lord Lucan, or the Opposition, or the Government. It was rather a fortuitous conclusion emerging from a multiplicity of councillors, an exuberance of projects, a rivalry of objects, and a chaos of ideas. And from such ele- ments of birth it was not to be expected that a sound or final system would present itself. But what language was employed by those who gave their sanction to it. It was one of reservation and of protest. Every one accepted it as a temporary exit from a difficult emergency. Every one condemned it as a lasting settlement of a long-agitated problem. He would not quote the Parliamentary debates, but he would refer to what might be regarded in the light of history—the fact, namely, that Lord Palmerston on one side, Mr. Spencer Walpole on the other, both clearly intimated, in assenting to it, that the question could not be considered as disposed of, and that further legislation was inevitable. What defects did it contain to bring about that general conviction of its being inadequate and temporary? To give a special class exemption from a statute by Resolutions or by Standing Order, by many had been deemed unconstitutional, and by all was said to be invidious. It was a dispensing power such as the Crown had formerly pretended to. The permissory power established by Lord Lucan's Bill was confined to the oath established in Lord John Russell's Bill. Lord John Russell had declared that that oath contained some things which ought not to be there, or at least ought not to be perpetuated. But in order to correct it Baron Rothschild must be driven out of Parliament, and all the former agitation brought again into existence, since the discretionary power to admit him vanished with that single oath. So long as the scheme of 1858 remained, there would always be a disposition in the House of Commons to amend it, and Bills might reach the House of Lords which they were not inclined to accept. In 1860 this had happened. But far more grave was the objection that debates in the House of Commons may occur at any moment on the Standing Order by which the Jewish members were admitted. And they inevitably would arise if parties happened to be evenly divided. For the last twenty years we had not seen the results of a contention between two parties of equal strength and equal aspiration. Let any one recall the close of Sir R. Walpole's Government about 1740, when the sick and dying were brought down to the floor of the House of Commons to divide, and ask himself whether at such moments no attempt would have been made to rescind a Standing Order which gave half a dozen votes to one party or the other. Let any one recall the time when Mr. Pitt came in a second time about 1805, when, on the impeachment of Lord Melville, 216 voted for, and 216 against him, and the Speaker took a quarter of an hour to decide his casting vote; and consider whether at the beginning of the Parliament no attempt would have been made to rescind a Standing Order which might give to Opposition or to Government the triumph each was eagerly pursuing. Or, if those illustrations were too distant, let any one recall the latter years of Lord Melbourne's Government, when power turned on a majority of two or three, and ask himself whether at that time the Standing Order would not have been questioned by whichever party it might injure. Whenever, therefore, a condition always possible arose, the whole question would revive which in 1858 men felt so anxious to get rid of. It would be admitted on these grounds that the legislation of that year required to be amended. On what principle, however, was a juster settlement attainable? He (Lord Campbell) was anxious to repudiate the principle which belonged to the Bill of 1858 when it first left the Commons, and was first presented to their Lordships. A profession of Christianity appended to the oath clearly had no value, unless universal in the obligation to subscribe to it. It could not be a test if those who disbelieved in Christianity were exempted from the action it would have upon them; nor could it stamp the character and colour of that faith upon Parliament, when only taken by a portion. On the contrary, in such a case it would exhibit and define the fact that Parliament, on that vital question, was divided. So far from adding a new sanction to, it disparaged to some extent the daily service by which, in both Houses, business was preceded—revealing, with the precision and authority of law, the fact that a class of Members differed from the faith implied in such a mode of worship. They were thus naturally led to the alternative—namely, that the oaths should be so framed as to be available for all whom the law admitted into Parliament, and no necessity exist for the exemptions or the privileges by which a section was enabled to avoid the forms imposed on the remainder of the Legislature. [The noble Lord then discussed the different forms in which that principle was applicable.] The oath of 1829, passed for Roman Catholics, contained no phrases or positions which could debar the Protestant or Jewish Mem- bers from subscribing to it. If adopted as the single oath, religious lines of demarcation would vanish from the Legislature. In the judgment of Lord John Russell, as expressed in 1858, they ought to do so. The oath of 1829, however, was modern in its character—and the value of such forms depended in some degree on their duration and antiquity. The Roman Consul, who, when Corinth fell into his power, and when rare and valuable sculpture had to be transmitted to his country, explained to the contractors for its passage, that should damage take place, new figures would be rigorously called for, illustrated the type of intellect which overlooks a vital truth—namely, that no modern form of words can have the solemnity and dignity of those which have already linked ages, generations, Parliaments together. The proposition he had ventured to embody in the Bill was, leaving the oath of abjuration in the grave to which it had been sentenced, to re-enact the oaths of allegiance and supremacy to supersede that of 1858. These oaths of allegiance and supremacy were established in the first Act of William and Mary; again in the 8th Act of William and Mary; again in the Bill of Rights, meant as an eternal monument of freedom—were never altered or disturbed till 1858, were then altered and disturbed for no purpose except to remove the complication on the Jewish question which existed. The complication which yet remains will disappear if we re-enact them. They are known to be available for all Members of the Legislature, whether Protestant or Jewish, and Roman Catholics will still continue to subscribe the oath of 1829. [Lord Campbell then referred to a Bill which Lord Lyndhurst had introduced in 1855 to repeal the oath of abjuration, and which, had it been carried, would have led to the exact position which his Bill designed to accomplish.] He had the shelter, therefore, of that venerable Lord, as well as of the Bill of Rights and the innumerable Parliaments in which the oaths he wished to re-enact had been accepted. The clauses were so framed as to supersede the oath of 1858, to revive the oaths he had referred to, and to maintain in the House of Lords its indisputable right to determine upon which Testament oaths should be administered, so that no Jewish Peer could take his seat in that House without their formal sanction, should the Crown ever give existence to the question. While, therefore, the posi- tion of the House of Lords would be unaltered and inviolate, and no member of the Jewish faith, without its fiat, could ever mingle in its councils—the difficulties which still arise from the imperfect system of 1858 would pass away; no collision on the oaths could take place between the Houses; no debates on the Standing Order could arise in the Commons; the anomalous and unbecoming demarcation of the Legislature into the adherents and the opponents of our faith would be avoided; and the solemnities intended to be permanent in the Bill of Rights would be restored. But, if such a mode of acting does not seem to be desirable, I appeal to the present, to the late Government, and that right rev. Bench which has so clear a right to influence the question, that they may gradually mature a safer and a happier solution. Two things seem to be indisputable, that the legislation of 1858 cannot be accepted as enduring; and that nothing would tend more to the dignity and credit of the House of Lords, clouded in the eyes of some by their long, although sincere, resistance to the claims of Baron Rothschild, and also by the form in which that resistance ended, than that the settlement we still require should be accomplished by their labour. The noble and learned Lord then presented— A Bill to substitute the Oaths of Allegiance and Supremacy as enacted in an Act passed in the Second Session of Parliament in the First and Second Tears of King William and Queen Mary instead of the Oaths now required to be taken by Her Majesty's Subjects other than Roman Catholics.

EARL GRANVILLE

said, there could be no doubt that it was desirable to have the words of an oath as clear and plain as possible, and it was impossible to defend the working of the existing oaths. As, however, he had not read the oath proposed in the Bill of his noble Friend, he could not give an opinion upon it. There was, however, no particular inconvenience experienced at present, and he did not see any great advantage in discussing the matter. He would suggest to his noble Friend to ascertain whether there was a reasonable chance of his having a majority before he moved the second reading; for there would be no advantage in moving in the matter of these oaths unless there was reasonable ground for expecting that legislation would follow.

THE EARL OF DERBY

said, he understood the noble Lord to say that it was not his intention to proceed with the Bill this Session.

LORD CAMPBELL

Hear, hear!

Bill read 1a; and to be printed. (No. 150.)