Lords Sitting of 13 November 1888

MINUTES.
PUBLIC BILLS—First Reading—Public Health Acts Amendment (Buildings in Streets)* (283).
Second Reading—Oaths (272).
Third Reading—Victoria University (218–284), and passed.

NEW PEER.
The Right Honourable Sir John Savile, G.C.B., having been created Baron Savile of Rufford in the county of Nottingham—Was (in the usual manner) introduced.
OATHS BILL.—(No. 272.)
(The Lord Herschell.)

SECOND READING.
Order of the Day for the Second Reading, read.
EARL SPENCER, in moving that the Bill be now read a second time, said, he must express his deep regret that his noble and learned Friend (Lord Herschell) was unable to do so in consequence of his absence from England. His noble and learned Friend had, therefore, requested him to take charge of the measure. In one sense the measure was full of legal points, and it might be of legal technicalities, and he wished the charge of it had fallen into the hands of some legal Member of their Lordships' House. On the other hand, there were many points in regard to which anyone who took an interest in public affairs had a right to express his views. There was one happy circumstance upon which he might congratulate himself—namely, that during the last year a very marked change had taken place with regard to public opinion on this measure. A few years ago this question of Oaths, particularly as it applied to the Houses of Parliament, was a matter of bitter controversy, and was taken up with great violence and great sincerity, perhaps, by men of both Parties in the State; but in the early part of this Session a marked change appeared, and this measure passed through the other House without any display of those regretful feelings. Both sides then took up the measure, and the Solicitor General, although, no doubt, in his individual capacity, assisted
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in framing the clauses and in helping the measure to pass. He trusted that in his remarks he should do nothing to increase and draw out Party feeling. First of all, he desired to say a few words on the general subject of Oaths, and he hoped he should not weary their Lordships by doing so. He should like to refer to two of the principal objects for which Oaths had been prescribed by Parliament—he meant originally as a test of loyalty, and also with regard to obtaining the greatest guarantee of the truth of evidence in Courts of Justice. Oaths of Allegiance affected in a great measure the Houses of Parliament. Had they been effectual in their object? He could hardly do better than quote the Report of the minority in a Blue Book delivered in 1867 on the question of Oaths. They said—
"Oaths of Allegiance have seldom, if ever, been found to be of any practical benefit to the persons or the institutions whose safety and stability it has been sought to maintain by imposing them. In peaceful and prosperous times they are not needed. In times of difficulty and danger they are not observed. Contemporary history affords abundant proofs of the inefficiency of political Oaths, whether taken by the people to their rulers or by rulers to their people."
Again, had Oaths been effectual in obtaining the greatest amount of truth in Courts of Justice? The same Minority Report said—
"Oaths taken on important occasions have been violated by persons of all ranks, ecclesiastics as well as laymen, sometimes with the connivance or even with the approval of the authorities whose duty it was to watch over their fulfilment. They have been taken under circumstances which could hardly fail to bring them into contempt, and in various ways have been treated as unmeaning forms by those to whose opinion or example the public have been disposed or accustomed to defer."
Great weight was due to these opinions of distinguished men, including Mr. Robert Lowe (now Lord Sherbrooke), Dr. Milman, Dean of St. Paul's, and Lord Lyveden. There was a curious example of the inefficiency of Oaths given in the same Report—
"Jeremy Bentham cites an oath taken by the Irish Bishops previously to investiture, in which each promises 'to see that in every parish within his diocese a school of a certain description shall have place.' Of the aggregate of these oaths,' he says, what in the year 1825 was the aggregate fruit? Performances, 782 perjuries, 480.'"
The late Sir John Mellor, Justice of

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the Court of Queen's Bench, who had had a vast experience in Courts of Law, thus expressed his opinion of the value of Oaths—
"The Legislature has enabled even Atheists to depose without any obligation of taking an Oath; but at the same time making them liable to punishment for false testimony, as if they had committed perjury. Profoundly convinced, by a long judicial experience, of the general worthlessness of Oaths, especially in cases where their falsity cannot be tested by cross examination or be criminally punished, I have become an advocate for the abolition of Oaths as the test of truth; but I would retain the punishment for false declaration wherever at present the law prescribes a penalty for a false oath.
As far as his own individual opinion went, he should wish to see an Affirmation take the place of the Oath of Allegiance. He could not say that he went so far as to wish to see all Oaths dispensed with in Courts of Justice, for he was afraid we had not yet arrived at such perfection of human nature that an Oath would not assist the due administration of the law. During the last 60 years Parliament had been endeavouring to diminish the number of Oaths. In 1829 the disabilities which had been imposed on the Roman Catholics were removed. Then came the Act enabling Quakers to affirm. This was followed by a Statute enabling Jews to take an Oath according to their own religious belief. The 3 & 4 Will. IV., c. 49, gave the option of Affirmation in Courts of Law to Quakers and Moravians. This was followed by the Act of 1854, which allowed a witness in a civil case to affirm if he stated that the taking of an Oath was not in accordance with his religious belief. Mr. Locke King's Act of 1861 extended the provisions of the last-mentioned Statute to criminal cases. Then the Act of 1867 extended to jurors in civil and criminal cases the relief given by Mr. Locke King's Act. These Acts referred to those who, having religious belief, could not lawfully take the Oath. Then there were the two Acts of 1869–70, which dealt with those who objected to take the Oath, or had been objected to as persons incompetent to take the Oath. But it depended upon the presiding Judge to decide whether the Oath would have a binding effect upon the witness's conscience. These were the Acts relating to persons who had no religious belief. He believed he was correct in
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saying that these two Acts did not refer to Scotland, and the curious result followed that if in Scotland a murder was seen by a man who was afterwards proved to be a disbeliever the murderer would escape scot free. The Sheriff of Aberdeen had in a recent case called attention to this unsatisfactory condition of the law. He believed these two Acts only referred to evidence, and did not extend to jurors and the Oath of Allegiance, except in the case of Quakers, Moravians, and Separatists. Serious hindrance to the administration of the law was thereby caused, and there might be a positive breakdown of justice if it were proved that a juror or magistrate was a disbeliever. The Court of Appeal, consisting of the Master of the Rolls and Lord Justices Cotton and Lindley, recently affirmed the decision of Lord Coleridge and Justices Grove and Huddleston that a person without religious belief, or who, having religious belief, did not believe in a future state of rewards and punishments, was incapable of taking the Oath. He believed that this decision had caused considerable difficulty in the position of men in the House of Commons who had, unfortunately, no religious belief. The time had, he hoped, now come when without Party strife they might go further in removing disabilities. The present Bill proposed that every person objecting to be sworn, upon stating the grounds of that objection—either that he had no religious belief, or that the taking of an Oath was contrary to his religious belief—might be capable of affirming in all places and circumstances where an Oath was now required by law. It was both just and equitable that we should extend the law in this country. First of all, the present law was inoperative. There were many men who had entered the Houses of Parliament, or who had taken part in public business either as justices or solicitors, who, although practically under a disability, had been sworn. In the interests of religion itself it was not right to do that which was wrong and inequitable, and it was wrong and inequitable that a citizen should be prevented from taking part in many of the most important duties of the State because of his conscientious opinions. He sincerely trusted, therefore, that their Lordships would give a second reading to this Bill, and that it would eventually

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pass into law and put an end to the difficulties which had so long been experienced from our present law. He must, however, confess that he should like to have extended the measure to Scotland, but he did not propose to alter the Bill, as it came from the other House in a shape which practically represented a compromise. He should be glad to consider any Amendments which might be proposed, and begged to move the second reading of the Bill.
Moved, "That the Bill be now read 2a."—(The Earl Spencer.)
THE LORD CHANCELLOR (Lord HALSBURY)said, that speaking for himself, and not on behalf of the Government, he must state that he regarded the Bill with a considerable amount of jealousy. He did not, however, propose to move its rejection, because he could not do so without affirming that there was no necessity for any alteration of the law relating to the taking of Oaths, whereas he believed the law needed amending in certain directions. But he could not help observing that if the noble Earl (Earl Spencer) had had the courage of his convictions the Bill would have been very different from what it was, as the greater part of the noble Earl's argument was directed against the existence of Oaths altogether. It was a rather remarkable argument to use, that as some people objected to take an Oath, therefore they should do away with Oaths altogether. They might just as well argue that because there were some people who objected to obey the law that therefore they should abolish the law. The quotation the noble Earl gave from the distinguished minority of a distinguished Committee that Oaths of Allegiance were ineffectual tended in the same direction. How could a Committee or anybody else say that they were ineffectual? No doubt there were persons who disregarded their obligations in this as in other respects. Two totally different questions appeared to be mixed up in this Bill. It was one thing to say that religious objections of every kind should be tenderly considered. It was a totally different thing to relieve persons from the profession of religious belief, whatever office or duty they might have to perform. Personally he believed that the
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operation of the Oath in Courts of Justice was very considerable indeed. It was the most common thing in the world for them to hear witnesses in Court correcting something which they had said outside, with the remark, "Oh, I was not on my oath then." That was an almost universal experience of Judges. The noble Earl's remarks on the questions of evidence were, no doubt, very weighty, and it was a consideration of that kind which induced the present Mr. Justice Denman to introduce the Bill to which the noble Earl had referred. A dreadful murder had been committed, and there was a witness who had seen the act, but evaded giving evidence by professing religious disbelief. It was, however, a very different thing to apply this principle to the ordinary duties of citizens, such as that of sitting on a jury. He did not think that one who professed to have no religious belief was a proper person to sit in judgment on his fellow citizens—it might be in a case of life or death. He should endeavour, if the question were open when they went into Committee, if he could do so without absolutely destroying the Bill, to move such an Amendment as would prevent the Bill from having such an operation as this. The state of the law applicable to Oaths was not satisfactory, but for different reasons from those expressed by the noble Earl. He thought the obligation of an Oath was so solemn and serious in most minds that the objection was that it was too lightly taken. But he was not disposed to dissociate religious belief from any judicial function whatever. The only argument which had been urged in favour of that course was the old one—from the abuse of a thing to take away the use. Speaking only on his own behalf, he should conclude by stating that he did not propose to move any Amendment on the second reading.
THE EARL OF CARNARVONsaid, he supposed they must regard this as the close of a very long controversy, which had gone on during the whole of his Parliamentary life, and perhaps the lives of nearly everyone in that House. When he first came into the House there were tests and subscriptions of some form or another existing everywhere. No doubt if these had been more reasonable they would have existed longer; therefore,

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he did not want to offer any captious objections to this Bill. But at the same time he shared the opinion of the noble and learned Lord on the Woolsack to this extent—that he did not specially approve the objects which the promoters of the Bill had in view. The laws of a country must rest on some religious foundation, and if they departed from that they must take up ground which was very much lower. But this had been the doctrine up to the present generation. It was accepted in the time of the Reformation. It was the view of both Parties in the time of the Civil Wars, and so on; and he knew no period in British history when that idea was not uppermost in the minds of men. The highest minds always recognized the sanctity of the Oath. It did seem to him that this Bill went very near indeed to announcing the doctrine that legislation and religion were to be divorced. He said very near; it did not go the whole way. The object of an Oath in a Court of Law was first and last essentially to get the truth. If for that purpose an Affirmation could be made sufficient, then, on principle, he might be fairly satisfied. As regarded the Parliamentary Oath, that stood on a somewhat different footing, but it might be cast into something like the same category. But, conceding all this, he thought the phraseology of this Bill was dangerously loose. Their Lordships would observe that every person, on objecting to being sworn, might state that he had no religious belief. He supposed that meant no belief in the existence of a Supreme Being. He was at a loss to understand how the want of such belief distinguished a man from being an Atheist. Well, the Bill then went on to say that he "shall be permitted to make a solemn Affirmation." What was a "solemn Affirmation?" He could understand an Affirmation under the circumstances, but a solemn Affirmation seemed to him to be absurd if there was any meaning at all in the words. Solemn meant a deep sense of awe of some supernatural power. Their Lordships would remember that the Quakers by Act of Parliament were able to make a solemn Affirmation, but the solemn Affirmation was accompanied by the words, "in the presence of Almighty God." In this Bill the word solemn had no sense whatever. His first objection was, that they were going, under
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this Bill, to create, for the first time, a class of persons who had no religious belief; whereas, hitherto, they had allowed men to make an Affirmation, not because they had no religious belief, but because their religious belief was such that it precluded them from taking the Oath. In the second place, those who were to take this Affirmation were to describe themselves as having no religious belief. He had some doubt about the Bill, but at the same time he observed that the Bill was intended to close a long dispute. Reluctantly, and with sorrow, he should give his assent to the second reading of the Bill.
LORD ADDINGTONsaid, he desired to explain the change of tone in the discussion of this question in the present Parliament from that which preceded it. In the earlier Parliament a Member returned for Northampton refused to take the Oath, and claimed to make an Affirmation. His claim was disallowed. He then insisted on taking the Oath which he had previously rejected, and with glaring inconsistency he renewed this attempt upon his resignation and re-election, with the result of being on each occasion signally discomfited. He subsequently came forward in a new Parliament, walked up quietly to the Table and took the Oath, and had ever since occupied his seat in the House. He should, therefore, argue that there was no practical necessity for pressing on a Bill of this kind. The noble Lord opposite had alluded to the perfunctory way in which the Oath was taken by some hon. Members in "another place;" but that was entirely a matter for themselves, and the House itself was entirely exonerated from any participation in that proceeding. Oaths had been connected with the history not only of this country, but of the whole world since its commencement, and they had been inseparably incident to all the conditions under which civilization had endeavoured to bring home to the individual the sense of personal responsibility. Looking at the terms of the Bill, it seemed to him to go beyond the necessities of the case. If the House of Commons chose to say that Oaths should not be compulsory there, and that Affirmation should suffice in the case of Atheists, in that case it would be better to leave out the word solemn. It was absurd to ask a man who had

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no belief in a Supreme Being to regard his making of an Affirmation as a solemn act. In that connection there was, he pointed out, all the difference in the world with regard to the admission of unbelievers and the relief given to Quakers and Moravians; but the Bill in effect said that henceforth every person, from the Monarch on the Throne down to the humblest person in the witness-box, who chose to say he had no religious belief, might be exempt from taking the Oath. Now, he did not believe that Oaths taken in Courts of Justice were detrimental to the interests of truth; on the contrary, it was the commonest experience of magistrates to find persons who would not mind telling a lie, but who, nevertheless, would not swear a lie. He could only regard the Bill as a concession to unbelief, and as a further stop in the direction of eliminating religion and the name of God from all the associations of life. He trusted, therefore, that if it were read a second time it would undergo such material changes in Committee as would deprive it very much of the effect it would have if adopted in its present form.
THE BISHOP OF CARLISLEsaid, that as the only occupant of the Bench reserved for the Bishops, he trusted that one conclusion might be drawn from the absence of his right rev. Brethren—namely, that this Bill was not regarded generally by them as being a concession to unbelief, as it had been represented to be by the noble Lord (Lord Addington). No doubt that was an aspect in which it might be regarded, and he did not at all wonder that reference had been made to the genesis of the Bill and the unfortunate kind of origin it had had in "another place." He had endeavoured to keep his own mind as far as possible clear of any such consideration, because he felt that one was apt to have his judgment biased if he looked to unhappy circumstances, and did not look upon the great points which were at issue. It seemed to him that they were by the force of circumstances put in a certain position out of which it was not possible to escape. They were face to face with a great difficulty—namely, that there were certain persons who, owing to a variety of causes, objected to take an Oath; and he was not disposed to look at the Bill merely in the light of a concession of privilege to certain per-
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sons who might be aggrieved by the want of that privilege, or from the necessity there was of getting evidence in the best way possible. It had been pointed out that it might be possible for a man, simply by the fact of saying it was contrary to his conscience to take an Oath, to fail to give evidence which might involve a question of life or death. But he looked at the matter from two broad points of view. There were two cases in which they had Oaths, and in which they had been defended. There was one with regard to the future, and another with regard to the past. As to the first, it was common to put a person chosen for a certain office upon his oath that he would faithfully discharge the duties thereof, and in such cases possibly an Oath so taken was not of much avail. On the other hand, with regard to the past, he entirely agreed that the Oath was of very great value. The noble and learned Lord on the Woolsack had put a case of a man who would give one kind of evidence on oath and another kind if not sworn. He had seen a case the other day in the newspapers of a witness who had intended giving evidence before the Royal Commission, and had expressed his intention to give evidence of a different character from a statement he had already made, and explained that by saying that when he made his statement he was not sworn, but when he gave his evidence he would be on his oath. He did most earnestly believe that true evidence might be got in Courts of Justice by putting a man upon his oath, which would not be otherwise obtainable; but, looking at the thing broadly, it did seem to him that it was a more important thing to obtain the truth in the way in which a man was prepared to give it, rather than to adopt a plan which made it impossible for some persons to give evidence at all, and put others in an entirely false position. Whether in respect to offices or in Courts of Justice, he thought there was a great deal to be said in favour of substituting a solemn Affirmation. He thought, however, that "solemn" was an unfortunate word, as he did not himself see how a declaration could be solemn if a man believed in neither God nor Devil; but that was not a matter for discussion on the second reading. What he rose for was to say that although he would doubtless be severely

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criticized, he intended to vote for the second reading of the Bill, and he did not think he should be, in any way, false to his God or his Saviour in so doing. The Bill, in his opinion, was not an irreligious one, but was required for the settlement of a most unfortunate state of things, and he would, therefore, vote for the second reading.
THE EARL OF DERBYremarked that there seemed to be practical unanimity for the second reading. As to what had been said by a noble Lord below the Gangway, he would observe that no one proposed to alter the form of Oaths or to do away with Oaths in general. All that was proposed by the Bill was that certain persons whose objection to take an Oath was insuperable, and who, whether we liked it or not, were now, undoubtedly, a very numerous class, should not be exempt from the obligation to give their evidence where it might be of great importance to third parties. The person who objected to take the Oath was not, as a rule, or even often, the person who suffered by his evidence not being taken. The evidence of a so-called Agnostic might save the life of a man accused, and surely that was reason enough for not shutting such evidence out. The case had been mentioned of a man who would tell a lie, but would not swear a lie. His objection, however, might not be a conscientious one, because if he swore falsely he would subject himself to the penalties of perjury; whereas for a false statement not made on oath there was no penalty. He thought there was some force in the verbal objections which had been taken to the Bill. He did not think it desirable to call upon a man to say in so many words that he had no religious belief. In the first place, it was not very easy to say in what religious belief consisted. The persons who called themselves Positivists would repudiate the notion of having no religion, though their claim might not be admitted. He should have thought that, instead of calling upon him to make that declaration, it would have been simpler to make him say that the taking of an Oath was repugnant to his conscience. That would be at once a less offensive form of words to some people, and, as to others, it would avoid the ambiguity of the present phrase. He
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did not believe in the value of promissory Oaths or Affirmations. He did not believe that they had ever induced any man to do his duty who would not have done so without them. He hoped their Lordships would pass the Bill without material alteration.
EARL GRANVILLEsaid, it appeared clear to him that their Lordships did not intend to reject the Bill on the second reading, and it would, therefore, be expedient for him to reserve a great deal that he had to say for the Committee stage. The Lord Chancellor had misrepresented his noble Friend (Earl Spencer) in saying that he was in favour of abolishing Oaths altogether. As he understood his noble Friend, he distinctly said he thought it was not desirable to remove the Oath in the case of witnesses in Courts of Justice. That had some bearing on the criticism of the adjective "solemn" as applied to the Affirmation. He thought such an adjective was of no use; but practically it was found that an uneducated person attached considerable importance to the form in which he promised or swore to speak the truth, and on that view it would be just as well to retain the word. He did not imagine that the Bill was, in the opinion of anyone present, an ideal Bill. He knew that there were Amendments which he and some of his noble Friends behind him would like; but his noble Friend, in moving the second reading, had pointed out that the Bill was very much in the nature of a compromise. In that view he should be excessively anxious not to disturb the arrangement by moving any Amendment which might be objected to, although he might think them an improvement to the Bill. He hoped, if he and his Friends avoided pressing Amendments they would like to make, that, on the part of the Government, it was not intended to support Amendments in a different direction.
THE PRIME MINISTER AND SECRETARY OF STATE FOR FOREIGN AFFAIRS (The Marquess of SALISBURY)said, he had been asked to say that he would not support any Amendments which might be made in an opposite direction. In an opposite direction to what? He proposed to follow the time-honoured custom of seeing the Amendments before passing judgment upon

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them. He had no knowledge of what Amendments his noble and learned Friend on the Woolsack, in his individual capacity, proposed to move. That was not a Bill which divided the two Parties of the House, or one which the Government proposed to deal with in their Ministerial capacity. It belonged to a class to which he was afraid the noble Lord opposite had great objections—namely, the class of open questions. He had always thought that there were a great many Oaths which practice imposed, that not only added no strength or solemnity to the action to which they referred, but that were a direct invitation to profanity and irreverence. Such Oaths he should be glad to see abolished. In reference to Oaths of persons whose convictions, or whose want of religious belief, made them unfit to take an oath, he agreed that there was very little difference of opinion. As had been rightly stated by the noble Earl opposite, the person who was injured by the throwing of difficulties in the way of evidence was not the person who was unable to take the Oath, but the person on whose behalf evidence was wanted. He should not think of rejecting evidence adduced by persons whose convictions he did not approve. It was a practical illogicality to do so. It was a survival from ancient Governments which had somehow run into our law, and which undoubtedly, now that attention had been drawn to it, had become a practical inconvenience. Beyond those questions, however, he waited to see the Amendments before he passed judgment upon them. He could imagine that the zeal of reformers might have gone too far in the clauses which they wished to introduce in the Bill, and he certainly could not undertake to make any deliberate engagement against all possible Amendments in any possible direction such as the noble Earl desired.
EARL GRANVILLEwas understood to explain that he gathered from the Lord Chancellor's observations that the noble and learned Lord was inclined to go in an opposite direction from that of the noble Earl who moved the second reading, and that he would have liked certain improvements made in the Bill.
THE MARQUESS OF SALISBURYsaid, he might also explain that he did not know in what direction that was.
Motion agreed to; Bill read 2a accordingly, and committed to a Committee of the Whole House on Tuesday the 27 th instant.
House adjourned at Six o'clock, to Thursday next, half past Ten o'clock.