HL Deb 18 February 1868 vol 190 cc851-8

Order of the Day for the Second Reading read.


In moving the second reading of this Bill, which is for the amendment of the Law relating to Promissory Oaths, although I regard it as of great importance, I shall not occupy much time in stating its provisions. Your Lordships are aware that during the last few years Parliament has been repeatedly dealing with particular oaths, and that from time to time some of them have been abolished, some altered in their form, and some converted into declarations. Now, those who have not given special attention to the subject can hardly be aware of the enormous number of oaths which are required by law to be taken by persons entering upon offices of the highest and of the lowest description. I hold in my hand the Report of the Oaths Commissioners, which contains an appendix of no fewer than 300 pages full of these oaths. Among these oaths there are some by which the parties are required to swear that they will do certain acts and perform certain duties which are never intended or expected to be fulfilled, and there are others by which persons enter into most solemn engagements to perform the most trifling and ridiculous acts. I will give your Lordships a sample of both descriptions of oaths. The oath of the Gentleman-at-Arms makes him assent to this— You shall continually be furnished with double horses and men, and provide that yourself and your men may be also well furnished with harness to serve Her Majesty in time of need, or otherwise for Her Majesty's pleasure when commanded thereto by Her Majesty. You shall also truly and diligently to your power observe and keep from this day forward all and every such reasonable articles, rules, and ordinances as shall be devised by the Queen's Majesty, and set forth and signed with Her Majesty's hand for your better usage and order. And all such cases by the way of secresy and counsel shall be showed unto you by the Queen's Majesty or the captain you shall keep secret, without discovering the same to any person or persons unless you shall be thereunto commanded. Also you shall, when commanded thereto by Her Majesty, make your musters in such harness and other habiliments of war, and upon such horses as shall be your own proper goods, and no other man's. This certainly is an oath which is never intended to be performed. I will now turn to the frivolous oaths, and I will begin with that which is required of the ale- taster of the borough of Wilton. He is to endeavour to— See that all brewers, innholders, and alehouse-keepers within this borough do brew good and wholesome ale and beer for men's bodies, and sell the same according to the stattutes of this realm, and the defaults thereof present from time to time. So help you God. The beadle of this borough is also required to swear that he will— Duly and faithfully take up all such swine piggs as you shall see going up and down this borough, either in the time of the markets or flairs, or at any other time or times whatsoever, and them detain and keep until the owners thereof have paid and satisfied such penalty and forfeitures as have been used and accustomed within this borough to be paid for the same; and if any resistance or rescous be made upon you on this behalf, you shall duly present the same to the Mayor of this borough, or his deputy for the time being, that reformation may be had therein. Whether it is for the reformation of the swine pigs or of the person who owns them that they are to be restrained the oath does not clearly express. These are merely samples of the different oaths which are required to be taken. The demand that was made for the re-consideration of all the oaths required by law to be taken led to the appointment in 1866 of a Commission, of which my noble Friend the President of the Board of Trade was Chairman. That Commission was directed to inquire— What oaths, affirmations, and declarations are required to be taken or made by any of our subjects in the United Kingdom, other than those required to be taken or made by Members of either House of Parliament, or by prelates or clergy of the Established Church, or by any person examined as a witness in any Court of Justice, or in any criminal or other proceeding before justices or otherwise of a judicial nature; and to report their opinion whether any and which of such oaths, affirmations, and declarations may be dispensed with, and whether any or what alteration may be made in the terms of such as it may be necessary to retain. The Commissioners were nearly equally divided in opinion upon this subject. I believe the larger number were of opinion that all promissory oaths, without exception, ought to be entirely abolished. I believe they extended the same censure to almost all declarations. However, with regard to promissory oaths they expressed this opinion, that they were either useless or detrimental to morality; and the reason they considered them to be useless was that it was of little importance to remind men of the duties which they had to perform, or to impose upon them by means of an oath the obligation to perform them. With regard to oaths being detrimental to morality, I think the ground upon which the Commissioners came to that conclusion was that a public engagement is liable to lose its power to bind the consciences of men, even in the case of those who would shrink from the dishonour of breaking a faithful promise. If I thought that oaths were imposed with the particular object described in the Report of the dissentient Commissioners—namely, to remind persons of their duties and to impose upon them an obligation to perform these duties—I should be disposed to agree with these Commissioners; but I must say I look upon, the matter from a higher point of view. I consider that persons who enter upon office under the solemn sanction of an oath must be strongly impressed with a deep sense of the obligation which is imposed upon them, and must be in a manner consecrated to their duties; and, therefore, an oath imposed on a proper occasion involves an obligation of the highest nature, and one which ought not to be lightly regarded. I therefore agree with the rest of the Commission in their opinion that some oaths ought to be retained, and at the same time that these oaths should be sparingly imposed. The oaths to which the Commissioners refer are the oaths of allegiance and oaths of office. They suggest that the oath of allegiance should be taken by persons who are entering upon offices of high importance, and that oaths of office should be restricted to those assuming merely judicial functions. I certainly agree with that portion of the Commissioners' Report. And this Bill will be found to contain five descriptions of oaths—the oath of allegiance, the official oath, the judicial oath, the military oath, and the constables' oath. Whatever opinions may be entertained as to the propriety of imposing oaths, at all events all will agree that if oaths are to be imposed they should be short—they should contain no useless words, and they should be free from all ambiguity. I think your Lordships will be of opinion that the oath of allegiance and the official oath contained in this Bill answer to this description. Many of your Lordships who have held high offices in the State, and have been required to take oaths when entering upon them, must be aware what minute details they enter into, and in what quaint and obsolete language they are frequently expressed. No one can doubt that the short and simple form prescribed by this Bill is infinitely preferable to the forms that are now in use. Upon the subject of the military oath the Report of the Commissioners says— We advise that the oaths taken by recruits on their enlistment into Your Majesty's army, and generally those taken under the rules of Your Majesty's service, should be retained with the changes we have suggested. We believe that if the oaths taken by soldiers in Your Majesty's army were administered with circumstances calculated to impress upon them the solemnity of the engagement which they then contract it would tend to quicken and maintain their loyalty. With regard to the military oath and the constables' oath it may be said—"Why do you retain these? Why not abolish them and convert them into declarations?" My answer to that is, that there is a wide difference between abolishing oaths and imposing new ones. If the question now were, whether these oaths ought to be imposed upon persons in the present day, perhaps it might be a grave question whether it would be desirable to impose them. But your Lordships must remember that these oaths are matters of notorious obligation, and are continually imposed; and if they were to be abolished now it might in many minds raise the presumption that the duties are not now so obligatory as they formerly were, and that there would, therefore, be the less impropriety in breaking the promise made. These, as I have explained, are all the oaths introduced into this Bill. It excepts the oaths required to be taken under the Subscription Acts, and those to be taken by Members of Parliament, under the Parliamentary Oaths Act. The oath of allegiance, the official and the judicial oath, will, under the Bill, be taken only by the great officers of State and the high judicial functionaries. With regard to oaths which are imposed by public Acts of Parliament, by private Acts, and by charters, the mode in which the Bill proposes to deal with them is this—it is proposed that those which are imposed by public Acts of Parliament shall be converted into declarations, without any alteration of their form. It is very important in many cases that the form should be preserved, because, now in many offices, an oath of secresy is required. I may mention the offices of assessors of income-tax and Commissioners in Lunacy, and your Lordships will see the propriety of requiring secresy from, those holding them. Therefore, with respect to public oaths which are imposed by public Acts of Parliament, the only change made is to convert them into declarations. The next portion of the Bill applies to oaths taken under private Acts of Parliament—to such oaths as those taken by members of guilds and companies. In the Appendix to the Report of the Commission your Lordships will find that most minute details are included in the oaths now required to be taken by those persons. It is proposed to substitute for such oaths a declaration merely in the form of a promise, that the person will be a faithful member of the corporation, guild, or company, without any specific details of the nature of the duties which he will have to perform. To sum up the whole of the provisions of the Bill, your Lordships will observe that, with very few exceptions, all promissory oaths will be abolished; that in all other cases in which they are now taken those oaths will be changed into declarations; and that in some cases the form of the oath will be preserved on the declaration which is to supersede it, while in others the form will be simplified by the adoption of a short declaration in which no details will be set out.

Moved, "That the Bill be now read 2a."—(The Lord Chancellor.)


, as one of those whom the framers of this Bill chose to consider the minority of the Commission whose recommendations had been set aside, wished to say a few words in vindication of their Report. He might observe that though there were differences among the Members of the Commission they had conducted their inquiry with harmony, and there could have been no more courteous Chairman than the noble Duke who presided over the Commission. Now, as to the proposals in the Bill, he submitted that there was no use whatever in administering to a man who had been chosen to perform certain duties, the performance of which was a condition of his holding the appointment, an oath binding him to the faithful discharge of those duties. The administration of an oath to a witness in a Court of Justice was quite a different thing. A witness might have a partiality; at all events, he was brought up on one side, and it might be well to swear him that he would tell the truth. But when you gave a person office on the supposition that he was competent to per form its duties, why should you swear him to do so? This was what he could not see. He thought it was almost blasphemy to call upon a man to take an oath that he would perform certain detailed duties before he knew what in practice those duties really were. As to the oath of allegiance, every subject of the Queen owed Her Majesty allegiance. Why, then, should a person who was assumed to be worthy of holding office under the Crown be called upon to swear that he would be a loyal subject? There seemed to be less necessity for presenting the oath of allegiance to such a man than might be supposed to exist in any other case. But there was no penalty for a breach of the oath of allegiance; and no one ever thought of proceeding against a traitor on the ground of a breach of that oath. He remembered Mr. Smith O'Brien coming to the House of Commons, on his admission to which he had taken the oath of allegiance, and sitting there while he was plotting a rebellion in Ireland. But on Mr. Smith O'Brien's return from transportation, when the remainder of his sentence was remitted, did any one think of indicting him for a breach of the oath of allegiance? Again, why should the oath of allegiance and the official, or judicial oath, both be compulsory in the case of persons who had to take the latter? If an oath was to be administered, one ought to be made to accomplish the double object. If it was thought that the omission of the military oath might have the effect of diminishing the loyalty of recruits, as it had for so long a time been customary to administer that oath, he would consent to its continuance; but he did not see why the officers should not take it as well as the men. The Bill proposed to do away with an oath in just one of those cases where he thought there was a reason for preserving it. As it did not follow from the nature of the duties of a Privy Councillor that secresy was to be observed, it did not seem unreasonable to swear a Privy Councillor to the matter of fact that he would keep the secrets of the Council. Where declarations were imposed, the form of the promise should have been given in the Bill. The noble Lord was understood to ask what oath would be required of special constables. [The LORD CHANCELLOR: They would take the oath of office.] Then in this case the advice of all the Commissioners had been disregarded, as in this instance a declaration was proposed instead of any oath. He did not mean to oppose the Bill, but had thought that he ought not to let it pass sub silentio.


was understood to agree that there were many unnecessary and useless oaths which it would be a great improvement to abolish. It was true that great officers, like the Lord Chancellor, who were bound to perform important duties, must have a deep sense of the responsibility resting upon them; but he did not agree with the noble Lord who had just spoken, in thinking that a similar feeling would always actuate those who held small and comparatively unimportant situations. The language of the 18th clause he regarded as not sufficiently precise, believing that it would be better to prescribe in the Act itself an identical form applicable to all those cases, than to leave the wording in the discretion of any officer of State, however exalted. Members of the Privy Council, he thought, upon their accession to office might fairly be required to take the oath of secresy.


said, that the noble Lord opposite had argued as if the only reason for imposing an oath upon entrance to office was with a view to punishment in the case of non-fulfilment of duty by the person taking the oath, and hence, if in any other way it could be rendered the interest of the officeholder to perform his duty, the oath became entirely superfluous, and, because superfluous, irreverent. His noble Friend entirely left out of sight one great motive with which oaths had been prescribed. These were not dictated by a mere calculation of how a particular duty could be obtained from a particular man about to be admitted to office. The real principle on which an oath was justified was, that there were in a Christian country certain great offices about which there was a worth and dignity making it desirable as well for the nation itself as for the man, that there should be a recognition of the fact that in the discharge of the duties of that office, he was acting under the highest conceivable obligations. The Coronation oath afforded a good illustration of his meaning. No one imagined that the oath taken by the Sovereign upon the Coronation was the security to which every person in the country was to look for the performance by the Sovereign of the functions so undertaken. Nevertheless, it would be a great abnegation of the Christian Church of the realm, if, in the solemn compact made by the Sovereign with the people over whom he was to reign, there were left out of sight all reference to the supreme Lord, in whose sight the Christian Sovereign declared that he undertook and entered upon the duties attaching to the Throne. He quite agreed that the multiplication of oaths, carried down to offices of small importance, had an injurious tendency; but the retention, of oaths in a few reserved cases, where types of the nation undertook duties in the face of the nation, tended, he believed, to reverence and not to irreverence. It was on the point to which he had alluded that the Commission was divided in opinion. There was no difference as to the substitution of declarations for oaths. And the principle in the framing of the declarations was this, that everything should be struck out which no longer constituted a real obligation, everything which lapse of time and change of circumstances had rendered no longer a part of the duties of the office, and to make the remainder as brief and distinct as possible. The other matter, which had been adverted to that evening, would, of course, be dealt with in Committee. In the general principles of the Bill he heartily agreed.


said, he was not in favour of abolishing all promissory oaths, and was of opinion that, upon the whole, the course proposed to be taken by the present Bill is the right one. At the same time, he thought that, in order to render its details as perfect as possible, the measure should be referred to a Select Committee, and he would be glad to give his noble and learned Friend any assistance in his power towards that end.


said, he was sure his noble and learned Friend and he had but one object, so he gladly consented to the proposal of referring the Bill to a Select Committee, in order that all its clauses should be framed in the most desirable manner. But, at the same time, it would be impossible for him, consistently with the due performance of his official duties, to attend that Committee.

Motion agreed to: Bill read 2a accordingly; and referred to a Select Committee: The Committee to be named on Thursday next.

And, on February 20, The Lords following were named of the Committee; the Committee to meet on Monday next, at Four o'clock, and to appoint their own Chairman:

D. Richmond L. Lyveden
E. Devon L. Westbury.
L. Bp. Oxford

And, on February 21, Earl Russell added.