HL Deb 19 April 1866 vol 182 cc1616-28

House in Committee (according to Order).

Clause 1 (Form of Oath to be taken by Members of Parliament).


, on rising to move to insert in the oath the words "and I make this declaration on the true faith of a Christian," and to omit from the Schedule the words "23rd and 24th Vic. c. 63," and also the words— An Act to amend the Act of the 21st and 22nd Vic. c. 49, to provide for the relief of Her Majesty's subjects professing the Jewish Religion, said, that in the ostensible and avowed objects of the Bill—to simplify the oaths taken by Members of Parliament to relieve Roman Catholic Members from a grievance which he considered more imaginary than real—he cordially concurred. But the Bill, in addition to an open and avowed, had also a covert and insidious object, which had not been alluded to by one of its supporters in the House of Commons, or by the noble Lord at the head of the Government, or the noble Duke (the Duke of Argyll) who addressed the House in support of the Bill. It had, however, been alluded to by his noble and learned Friend (Lord Chelmsford), who stated that he had always conscientiously opposed that object. That object was, for the first time, and by an Act of the united Legislature, to un-Christianize the Houses of Parliament. When a majority of their Lordships, in 1858, for the purpose of saving the two Houses from a conflict, and the Government from a dilemma, did violence to their convictions by supporting the Amendment of his noble and gallant Friend (the Earl of Lucan), he had thought that the ques- tion of the admission of the Jews had been settled for ever. It was then discovered that a Jewish Member of Parliament, although incompetent to vote upon a division, could sit and vote in Committee, and enjoy all the other privileges of a Member of Parliament. That was a startling anomaly, and a Resolution was brought forward to enable the Jews, in spite of the existing law, to take their seats in the House of Commons. The decision of the Judges upon the matter, if it were brought before them for the recovery of the penalties, was not doubtful. There was therefore the greatest danger of a conflict between the House of Commons and the Judges. To save the country from this danger and the Government of the day from the dilemma in which they were placed, he and many others on that (the Opposition) side voted in support of the Bill of his noble and gallant Friend (the Earl of Lucan). He would recall to their Lordships' attention how that Bill dealt with the question. It left the whole subject of oaths as it stood before; but it enabled the other House of Parliament by Resolution to dispense with certain portions of the prescribed oath, so as to allow Jew to take their seats in the House of Commons. He admitted that was a compromise, and to some extent a concession of principle; but let their Lordships consider what it was they conceded. And here he would say that it was to that (the Opposition) side of the House rather than the other that he addressed himself. The point that was conceded was the permission to the House of Commons to admit by Resolution Jews into their House by the omission from the oath of the words "on the true faith of a Christian." Half of that power the House of Commons already possessed, for it had been discovered that a Member without taking the prescribed oaths might enjoy all the privileges of a Member, except those of sitting and voting in the whole House. It was also unquestionable that the House of Commons would persist until they should find some means, whether legal or illegal, of seating the gentleman in question in their House. All, therefore, that their Lordships conceded was half the point—in fact, a half which they hardly had to give. What did their Lordships' House retain? It retained the power of maintaining intact the Christian character of that House, and it also saved, as it were, the acknowledgment on the part of the united Legislature of the right of other than Christians taking their sent in either House; it saved the country, as he had said, from a conflict between the House of Commons and the Courts of Law; it avoided an unpleasant difference between the two Houses; it set at rest a question which he could distinctly say, from his knowledge of the House at that time, was as much disliked by those who supported the Bill as by those who opposed it; and last, and not least, it saved the Government of the day from a dilemma in which they were placed by the causes to which he had alluded—and the fact that there was a considerable difference of opinion among the various Members of the Cabinet on the subject. Now, he would ask, why was this question, then set at rest, again to be disturbed? Who were dissatisfied with the present state of the law? What arguments wore there in favour of the proposed change? He certainly had heard none. Although he thought it would have been better and more straightforward if the Government had from the first called attention to this most important feature of the Bill, even in their silence on that point they were justified by the conduct of noble Lords oil that side; and therefore he would bring no charge against the Government on that ground. Though he thought Her Majesty's Government bound by the compromise entered into in 1858, yet he was bound to admit that when those who were as it were the managers of the compromise on that (the Opposition) side acquiesced by their silence or by their voices in the course which the Government had pursued, they were justified in considering themselves absolved from the conditions of the treaty. He was not going to inflict on their Lordships a speech on the Jewish question. If any one sought for reasons against admitting the Jews to Parliament, they might be found in Hansard, in the speeches of the noble Earl (the Earl of Derby) and the noble and learned Lord (Lord Chelmsford) by his side, and so convincingly stated that it would be difficult to understand why those noble Lords should go back from opinions which they had so long deliberately entertained. He had, indeed, heard one reason given by his noble and learned Friend (Lord Chelmsford) when, in passing, he alluded to this part of the question on the second reading. If he was not incorrect, the argument of his noble and learned Friend was this—He said he had consistently opposed the admission of the Jews to Parliament, but that the whole principle was compromised by the measure of 1858; the game was up, the battle over, and there was nothing left to fight for. He could hardly think his noble and learned Friend could have been serious. In all treaties, compromises, and arrangements between nations, parties, or individuals, a certain sacrifice of views, and therefore of principle, was made on the one side or the other, or both. But did the noble and learned Lord seriously mean to maintain that, because he could not retain all that he asked, he would come to no terms, make no treaty, submit to no compromise on any occasion? Would his noble and learned Friend say, "I cannot obtain what I seek, therefore I will take nothing. I cannot retain what I want, therefore I will throw the whole overboard." He could not believe that. Every principle contained principles in it, and was itself contained in the principle of doing what was right to the best of one's ability. Did his noble and learned Friend mean to say that, because in his opinion a wrong had been done in admitting the Jews to the House of Commons, that wrong created a right, and the Jews ought to be admitted to both Houses? Now, in the case of tithes, the right to them lay originally in the inviolate right of the Church to one-tenth of the produce of the land. It was found, however, that tithe acted as a tax and as an impediment to the improvement of the land, and tithes were commuted to a rent-charge based on the tenth of the produce at that period. Again, in the case of church rates, which was the topic of the present day, there were few in that House who did not desire to see that question settled by relieving Dissenters. Would the noble and learned Lord maintain that, because the supporters of church rates would be willing to consent to such a compromise, church rates must be done away? If that was the argument of the noble and learned Lord, it could not be taken to be the argument of those who voted in favour of the Motion of his noble and gallant Friend (the Earl of Lucan). The noble Earl (the Earl of Derby) when First Minister of the Crown, having summoned a majority of the House to aid him in excluding Jews, aliens in race and religion, from entering Parliament, was never weary of assuring the House, on the Motion of his noble and gallant Friend, that their Lordships still main- tained their opinion, that they conceded no principle, although they were ready to satisfy, to some extent, the wishes of the House of Commons, and that there was no abandonment of principle. He confessed that, influenced by the authority and eloquence of the noble Earl, though with much hesitation, he voted in favour of the Motion of his noble and gallant Friend. But what were the reasons why the noble Earl passed in silent acquiescence over this portion of the Bill before the House? Was it because he considered the question an unimportant one? The noble Earl could not consider unimportant a question upon which he for several years made a chief display of his eloquence and of the personal influence which he exercised over the House. The question was set at rest in 1858, and had remained at rest until now—until now there had been no demand for a change; the advocates of religious emancipation were satisfied with the Act of 1858, and there had not been even a single allusion during the passage of the Bill through the House of Commons to this very important question. What, then, were the reasons why they were to turn their backs upon their former opinions, and to stultify themselves in the way proposed by this Bill. What the noble Earl's reasons were he knew not. What others thought he was equally unacquainted with. What the fate of his Amendment might be, whether anybody would vote for it, he did not know; but he could not silently acquiesce in passing a measure which a majority of that House so earnestly, so frequently, and so consistently opposed. He would, on the contrary, give their Lordships an opportunity to-night of vindicating by their votes the Christian character of that House, and their determination not to be moved or induced, without reason assigned or argument employed, to abandon a principle which they had so long defended. In the Amendment to the Schedule of the Bill of which he had given notice he proposed to continue the Act brought in by his noble and gallant Friend below him.

Amendment moved, to insert after the word "subject" the words "and I make this Declaration on the true Faith of a Christian."—(The Marquess of Bath.)


said, that the question of the admission of the Jews into Parliament was a question which was for many years advocated, with great ability and perseverance, in the House of Commons. These discussions at length led to a conference between the two Houses, in which a most awkward and inconvenient decision was arrived at, the effect of which was that, although a Jew might not sit in the House of Commons, he might sit upon its Committees and join in their Reports. Eventually, in 1858, both Houses agreed to a compromise, which was that either House might pass a Resolution authorizing a Jew who sought to take his seat to take the oath without the words "and I make this declaration on the true faith of a Christian." That was a very convenient compromise, and it saved the Government of the day from great embarrassment, and there was no ground for saying that there remained any difficulty after that compromise. Many Resolutions were passed by the House of Commons to admit Jews by omitting these words from the oath taken by them; and at length it had become a Standing Order of the House of Commons that when a Jew presented himself at the table of the House to be sworn, the words "and I make this declaration on the true faith of a Christian," should be omitted from the oath. It was under these circumstances that the Legislature were called upon to consider a general law for placing the question of oaths upon a fair and intelligible footing. It would be far better that there should be a uniform law for both Houses, that there should be one oath for all Members, and that there should be no distinction on the ground of the religious faith of a person who had a right to sit in either House. It was surely better not to have an Act of Parliament that said Jews should be admitted, and another that they should not. The proposal of the noble Marquess would revive the whole controversy as to the admission of Jews, and as that would lead to great inconvenience, he hoped that the Amendment would be rejected, and that Parliament would accept a general oath for all Members.


said, he did not think the noble Earl opposite (Earl Russell) had correctly stated the effect of the Amendment. It would not revive the contest with respect to the admission of Jews to Parliament; but it would simply maintain the compromise of 1858. But, notwithstanding the arguments of his noble Friend the Marquess of Bath, he (Lord Chelmsford) was unable to agree with him. The noble Marquess was perfectly correct in his recollection of his (Lord Chelmsford's) observations on the second reading of the Bill; but although the noble Marquess had roundly taken him to task for those remarks, he had not convinced him that he had taken a wrong view on the subject. He (Lord Chelmsford) had always opposed the admission of Jews to Parliament on principle, and he objected to the compromise of 1858 entirely upon the ground that it was a violation of the principle which he contended for. But the House of Commons had chosen to adopt a Resolution by means of which a person of the Jewish faith presenting himself at the table could be admitted on taking the oath, omitting the words "on the true faith of a Christian," and that Resolution had now become a Standing Order of the House; it was therefore clear that, so far as the House of Commons was concerned, there was no impediment whatever to the admission of Jews to Parliament. The Resolution had broken down the barrier completely, and the Jew walked in without any difficulty and took his seat. With regard to their Lordships' House—suppose Her Majesty were to be advised to raise a Jew to the dignity of the peerage, would their Lordships refuse to pass a Resolution dispensing with that portion of the oath which required him to say he made the declaration "on the true faith of a Christian?" Their Lordships would hardly be disposed to adopt a course which would be an insult to the Crown; and therefore he considered that there was practically no impediment to the admission of Jews to their Lordships' House. Under these circumstances there was, as he had said, nothing left to fight for! Immediately the principle he had maintained was sacrificed all grounds for further resistance were gone; therefore he did not oppose the second reading of the Bill, and must now decline to vote for the Amendment.

On Question, Resolved in the Negative.

Clause agreed to.

Clauses 2 to 5 agreed to.

Clause 6 (Repeal of Acts).

LORD CHELMSFORD moved to add the following words:— Provided always that the repeal of these Acts, or any of them, or of any Parts thereof, shall not be construed to weaken or in any manner to affect any Laws or Statutes now in force for preserving and upholding the Supremacy of Our Lady the Queen, Her Heirs and Successors, in all Matters Civil and Ecclesiastical within this Realm and other Her Majesty's dominions.


said, that on the part of Catholic Members he must return thanks for the boon now offered, which put Catholics on a perfect equality, as far as Parliament was concerned, with their Protestant fellow-subjects, a position, he believed, they had not occupied for centuries. Their thanks were due first to Her Majesty's Government for having proposed this measure, and next to the noble Earl opposite (the Earl of Derby) and his political friends for the manner in which they had received it. A great deal had been said about a compact between the Legislature and the Roman Catholics, said to have been entered into at the time of the passing of the Emancipation Act; but there was no compact made previous to the passing of that Act, and the noble Earls opposite to and below him (the Earl of Derby and Earl Russell) would confirm him in the accuracy of that statement. After the passing of the Emancipation Act an understanding, not expressed, but implied, was made between the Legislature and the Roman Catholics. The Legislature said to the Catholics, "Here is emancipation, but you must take that oath;" and the Catholics on the other side said, "We accept emancipation and we will take this oath;" but there was nothing in that understanding to prevent Catholics from asking the Legislature to abolish that oath or to prevent the Legislature complying with that request. He did not think the oath now proposed conferred upon Catholic Members any right of voting which they would otherwise possess; but still, the present Bill would prevent their being declaimed against for voting on questions relating to the Established Church. Catholics had been accused, for instance, of perjury aggravated by treachery because they voted for the abolition of church rates. He himself had always voted for their abolition without any idea that he was doing any injury to the establishment, but solely because he thought it was unwise and impolitic to retain them. Questions would, no doubt, arise relating to the Established Church and affecting national and Imperial interests. On such questions Catholic Members had always claimed a right to vote. But when questions were brought forward relating to the internal regulations of that Church—such, for example, as the alteration of their Liturgy—the good sense of Catholics led them to abstain from voting altogether. On such occasions he himself had always retired. And if anything could confirm them in that course it would be the Liberal measure now proposed. Another advantage conferred on Catholics by the Bill was that they would be relieved from the odium of denying a doctrine which they had never entertained. At the present moment there was in Italy an ex-communicated Sovereign; but who had ever heard of even the wildest Ultramontane asserting that any one might assassinate Victor Emmanuel because he was excommunicated? Then, at the end of the existing oath was a declaration that it had been taken without any equivocation or mental reservation whatsoever. To him that declaration appeared wholly unnecessary, because if they were open to that accusation, it was just as applicable to that part of the oath as to any other part of it. Catholics were required to swear that the Pope had no temporal power in this country, while Protestants took an oath that he had not nor ought to have any jurisdiction, temporal or spiritual, within the realm. But it was notorious that the Pope did exercise spiritual power in this country, witness the "Papal aggression" and the appointment of the Archbishop last year. Indeed, one English and one Irish Peer had declined for some time to take their seats in that House because they could not conscientiously swear that the Pope had no spiritual power in the country. Well, the consequence was that a somewhat singular state of things was brought about. The explanation, he knew, was that the Pope had no power "by law;" but then the words "by law" were not in the oath. Therefore, while Catholics were obliged to declare that they made no mental reservation, and they re-required none for the explanation of their oath, Protestants, who were not called upon to make that declaration, were under the necessity of making use of a mental reservation in order to give to the part of the oath relating to the Pope's spiritual power a meaning which the literal words did not convey. He did not say this for the purpose of making any accusation, but only with the view of showing the advantages which Protestants, and the greater advantages which Catholics, would derive from this measure. He very much regretted that the noble and learned Lord (Lord Chelmsford) had moved the Amendment—not that he could find any fault with the meaning of the words of that Amendment, but because he was quite sure it would give rise to much discussion among the Roman Catholic body. To his mind the Amendment merely affirmed a truism; but he was quite certain that many Catholics would look upon it rather as a blow dealt against them by an enemy than as a suggestion made by a friend. For his own part, he wished that nothing should be introduced which would provoke fresh discussion when the Bill went back to the House of Commons; he must, however, leave the matter to the discretion of the noble and learned Lord and of the House. He was not much in the habit of addressing their Lordships, but he could not help taking this opportunity of expressing the satisfaction he felt at the liberal measure proposed on this side of the House and so generously accepted on the other.


said, he must express his regret at some of the remarks made by the noble Lord, and particularly at his statement that the Amendment now before their Lordships would probably give rise to discussion elsewhere. The noble Lord had stated that the Amendment was nothing but the expression of a truism—and, indeed, it had been said that for that reason it was quite unnecessary. Now, in order to prevent misunderstanding, he would explain the reason which had induced him to press for the insertion of the Amendment. The supremacy was an essential part of the Constitution. Well, the Bill proposed to repeal a number of Acts which were enumerated in the schedule, and many of which Acts contained oaths in which there was a recognition of the supremacy of the Crown. He was apprehensive, therefore, that when persons came to compare the oath now proposed with the oaths contained in those Acts, a conclusion might be drawn in some degree adverse to the supremacy. In other words, he thought some persons might conclude that, as the Legislature had repealed the Acts containing the oaths recognizing the supremacy, and had given a form of oath in which no such recognition was made, therefore he thought it was not right and proper to recognize the supremacy at all. In order to guard against such a consequence he had proposed the Amendment, which, although termed a truism, was, at all events, a protection against such a conclusion being drawn. It could injure no one, and would give satisfaction to those who were anxious that the supremacy should not be in any way affected. He trusted, therefore, that when the Bill was calmly and dispassionately considered no one would en- tertain the slightest objection to the Amendment being inserted.


said, he should undoubtedly vote for the Amendment, which there could be little doubt would be accepted by the House of Commons. He recollected the circumstances under which the Catholic Relief Bill was passed. At that time he happened to be a Member of the Government. Now, there was no doubt that the oath contained in the Act of 1829 was not a matter of compact with the Catholics—indeed, it had never been so understood; but the oath which under that Act was imposed upon Catholics when taking their seats in Parliament was substantially a matter of compact, not with the Roman Catholics but with the Protestants, and the Roman Catholics accepted it. It was in consequence of that oath that the Bill was passed, and although Parliament might now deem itself at liberty to sweep away a security which, whatever its actual value, English Protestants then thought they derived from the oath, he could not think such a step would be right. Others might be of opinion that at this distance of time they might deal freely with the oath. At any rate he (the Earl of Ellenborough) was not at liberty to do so, because he had been a party to the transaction.


protested against the doctrine laid down by the noble Earl, and utterly denied the power of any Parliament to prevent any subsequent Parliament from doing what, under altered circumstances and in other times, they might consider expedient. Therefore, he had always held that arguments founded upon oaths and compacts were powerless to influence the decision of Parliament. He cordially concurred with his noble Friend (Lord Camoys) in regretting that this Amendment had been moved. Of course, as both sides of the House appeared willing to accept it, he should offer no opposition, nor would he even argue the matter. The noble and learned Lord (Lord Chelmsford) had failed to show that any practical advantage whatever would arise from the introduction of the Amendment into the Bill. That being the case, it seemed to him very impolitic, unwise, and injurious to the reputation of that House and of Parliament to show, as it were, a slight which could not be acted upon, and to make a concession which was deemed necessary with as bad a grace as possible. If there had been the slightest prospect of succeeding in resisting the Amendment, he, for one, should have voted against it.


observed, that if the sentiments which had been enunciated by the noble Baron (Lord Camoys) had been avowed in 1829 the Emancipation Bill would never have been passed. He could not see what greater relevancy the proposal to abolish the declaration against transubstantiation had to this measure than it would have to a Railway or Gas Bill. If the Heir Apparent should be advised by the lawyers that there was no need for him to take the declaration, he (the Marquess of Westmeath) saw a prospect of civil war.


said, he quite agreed with his noble Friend (Earl Grey) that it was competent to any Parliament to repeal what a previous Parliament had enacted. In point of instance, the Act of Supremacy was repealed in the reign of Queen Mary. It was true that some of our laws were more intimately connected with the Constitution than others, and such a law was that which related to the supremacy of the Crown; but there was nothing in this Bill to affect that law. At the same time, he saw no harm in Parliament declaring that nothing in this Act contained shall be construed to invalidate the supremacy of the Crown as affirmed in preceding statutes. He must say that, in his opinion, the conduct of the noble Earl opposite (the Earl of Derby) and the noble and learned Lord (Lord Chelmsford) had been perfectly fair in this matter. They had not shown any wish to impair the Bill, and though some Roman Catholics might think that the words proposed to be inserted might as well be left out, he would make no objection to the Amendment.


said, he did not want to enter into a discussion as to the character of the compact made in 1829, but he wished to say that the noble Earl on the cross-benches (Earl Grey) had misunderstood his noble Friend (the Earl of Ellenborough) in respect of that compact. His noble Friend did not deny that it was competent to any Parliament to do away with any engagement entered into by a former Parliament; but his noble Friend said that, having regard to all the circumstances under which the engagement with the Protestants was made in 1829, and to which the Roman Catholics had acceded, he, as one of the Government who had been a party to that engagement, felt himself bound to object to the alteration which this Bill would make in the oath. He would, in conclusion, express a hope that the passing of the measure might be attended with the beneficial effects anticipated.


said, he had to thank his noble Friend for removing the erroneous interpretation placed upon his words by the noble Earl on the cross-benches. For himself, he thought the remarks so clear that they did not need explanation.


regretted that he had misunderstood the noble Earl. But he had certainly heard from some one the argument that Parliament was bound by a supposed pledge or compact, and against that idea he had risen to protest.

Clause amended, and agreed to.

On Motion that the Preamble be agreed to,


said, the Preamble simply recited that it was expedient to amend the laws in the manner proposed, but without assigning any reason. He thought it would be advisable to make some reference to the main ground upon which noble Lords, though entertaining some objections to the measure, had been induced to give it their support. This ground was the desirability of adopting one uniform oath, which could be taken without difficulty by Members of Parliament belonging to all religious denominations.


said, there could be no objection to the course suggested.

Preamble amended accordingly, and agreed to.

Amendments made: The Report thereof to be received To-morrow, and Bill to be printed, as amended, (No. 76.)