HL Deb 27 November 1888 vol 331 cc283-92

Order of the Day for the House to be put into Committee, read.

Moved, "That the House do now resolve itself into Committee upon the said Bill."—(The Earl Spencer.)


said, he trusted that the Bill would pass through their Lordships' House without Amendment. The subject had been thoroughly threshed out. He earnestly hoped that the Bill would be passed in its present state, and that no more discussion would arise with regard to it. The Bill ought to be passed quietly, and if a man chose to say that he desired not to swear he should be relieved of the obligation to do so, and those who suspected him should have the power of challenging him.

Motion agreed to; House in Committee accordingly.

Clause 1 (Affirmation may be made instead of Oath).


moved, in page 1, line 5, to leave out from "every" to the end of the clause, and to insert— ("Member of either House of Parliament shall (instead of making and subscribing the Oath or Affirmation of Allegiance), subscribe the following declaration:—I, A. B., do solemnly, sincerely, and truly declare and affirm that I will be faithful and bear true allegiance to Her Majesty Queen Victoria, her heirs and successors; according to law.) His Lordship remarked that the second reading of the Bill clearly indicated that the House wished the measure to pass. For his own part he did not desire to prevent its passing; but it related to questions of the highest importance, and therefore it ought to be treated with deliberation. In his opinion, the Parliamentary oath ought to be dealt with apart from the other oaths affected by the Bill. Surely, if an affirmation was good enough for one man, it was good enough for another. If it were good enough for a person who denied the existence of God, a fortiori it was good enough for Christians. Why should any Christian volunteer to take an oath which was not imposed upon him by law? The straightforward course would be to pro- vide that nobody need do more than make an affirmation.

Amendment moved, ("In page 1, line 5, leave out from ("every") to the end of the clause, and insert ("Member of either House of Parliament shall (instead of making and subscribing the Oath or Affirmation of Allegiance) subscribe the following declaration:—I, A.B., do solemnly, sincerely, and truly declare and affirm that I will be faithful and bear true allegiance to Her Majesty Queen Victoria, her heirs and successors, according to law." (The Lord Addington.)


understood that the House, in reading the Bill a second time, affirmed its principle, which would be done away by the noble Lord's Amendment. The noble Lord wished to confine the Bill to the Houses of Parliament. Then the Bill as it stood was not obligatory. It did not sweep away all oaths; but the noble Lord wished to sweep them away altogether in the Houses of Parliament, and to leave matters as they were elsewhere. So far as his individual opinion was concerned, he should not object to the abolition of the oaths for Members of both Houses; but the Bill was a compromise, and if the noble Lord's Amendment passed their Lordship's House it would be lost in "another place."


said, he was unable to accept the noble Lord's Amendment, which had not a single merit to recommend it. But, little as he liked the Amendment, he liked his noble Friend's argument still less. The Amendment made a declaration compulsory instead of optional, and would settle nothing and unsettle everything.


said, that it had come to him from many quarters that the Church of England was expected to oppose this Bill. But he thought the Church was in no way bound to resist the measure. The Church was thought somehow to be compromised in the maintenance of oaths, as if it held that truth itself depended on them. He, however, did not accept the interpretation which many moderns adopted, as it were almost in defence of our usages, that Our Lord forbade only "profane oaths," or levity in the use of oaths in common talk. But Our Lord was not speaking only of those oaths which Moses would have condemned with the same earnestness as Christ Himself. He was com- menting on and correcting the grave Mosaic precept itself, which had been as much as "the old time" could bear, and which simply required faithfulness to oaths sworn. His express words, that whatsoever was more than "Yea" and "Nay" came of evil, precluded this narrow interpretation. He there traced the substitution of adjuration for affirmation to an evil source. What that bad source was in part was patent. Unhappily, the experience of the noble and learned Lord on the Woolsack, that there were multitudes of people who would speak falsely but would not swear falsely, could be confirmed by every clergyman. The word of masses of mankind was not credible, though their oath was. The necessity, then, for oaths was to be deplored, but was to be acquiesced in so long as the civil magistrate, "who did not bear the sword in vain," declared oaths to be found essential to the ends of justice for the eliciting of truth and the conduct of government. But that could not make the exacting of an oath more or less to be a thing indifferent, or the taking of oaths as if they were not only a sad necessity, but a good thing, justifiable. He did not find that the ancient writers took the line that profane oaths only were against the Christian ideal, He held with Augustine that oaths were in necessariis but not in bonis, and with Chrysostom that the oath was a security so long as men distrusted each other. The last conversation he had with the statesman whose condition at that moment was causing so much anxiety, alike to those who agreed and those who did not agree with him, was on this subject. The Article of the Church of England, which they then discussed, said exactly this upon the subject—namely, that oaths at the command of the civil magistrate were not prohibited—that was, so long as owing to the imperfection of Christian society they remained the security for truth; they could only be taken rightly if this condition were fulfilled upon the declaration of the supreme authority that they were indispensable. Even then, the Article laid upon the individual conscience these cautions—that the oath must "be in a cause of faith and charity," and "made in justice, judgment, and truth." The Article was an Article of Religion, and it simply allowed that an oath under such circumstances might be taken "without sin." In almost every age the Church had protested against oaths being of more account than this. In a Council even of the 16th century the "Immoderata, iuramentorum exactio" was condemned. The Church, therefore, was bound by its principles to accept any relaxation in oath-taking which the Government thought possible; and he considered it a real gain when at last the making of a false statement became as punishable as a perjury, when saying untruly was to be counted as wrong as swearing untruly. It was a sign that Christian feeling had made progress. Should it still be ruled that any class of oaths was to be retained, we should bow to the decision but look on to its reversal. For the present, there appeared to be a certain obscurity in the words, which provided that an affirmation might be made where a person stated that the taking of an oath was "contrary to his religious belief." Would that include the case of a Churchman who, though considering himself justified in taking an oath at the bidding of the civil magistrate, yet had an aversion to taking an oath, and a conscientious feeling that an affirmation was the more desirable form? He hoped those words would include such a case, or, if not, that they would be amended, for otherwise in practice the effect would be that an unbeliever's word would be treated as being as good as a Christian's oath. Lastly, with regard to this measure generally, he knew that it had been urged in some quarters that the Church ought, having regard to its origin, to reject it altogether; but he hoped that that was not the opinion of any of their Lordships as to the Church's duty. If any body in the world was bound to judge any measure honestly for what it was in itself without respect of persons, it was the Church. The measure ought to be treated on its merits, and he felt bound to support it.

Amendment negatived.


suggested the substitution of the words "religious conviction" instead of "religious belief."


said he did not think that there was any real difference between the words in the Bill and those suggested by the most rev. Prelate, and he thought it better not to introduce any unnecessary changes in the Bill.


remarked that if the word belief clearly included conviction he should not suggest the alteration, but "belief" might very well be understood to be the religious creed of the Church to which the person belonged, whereas he wanted to include the case of a personal religious aversion to taking an oath, irrespective of whether the taking of an oath was or was not against the creed of the Body to which the person belonged.


said, the words "religious belief" were already on the Statute Book, and were well understood in Courts of Justice. The common thing was to ask a man whether the taking of an oath was contrary to his religious belief.


said, be was anxious that the Bill might be passed without Amendment, so as to obviate further discussion, and hoped that no unnecessary verbal Amendments would be made.


, in moving the following new Clause:— Such an objection and statement, on the ground that he has no religions belief as in the first section of this Act mentioned, if made by a juror shall he good cause of challenge to that juror by the Crown or by the prisoner in any criminal proceeding, and by any party thereto in any civil cause or matter; said, that juries had intrusted to them the property, character, and, in some cases, the life of individuals, and he thought that those individuals ought to have a right to have their case tried by a juror who was bound by the sanctity of an oath and influenced by considerations of a judgment to come and a hereafter. He believed that a great many persons would object to have their rights, much more their lives, committed to the charge of persons uninfluenced by these solemn feelings, and while Parliament might think it expedient to relieve certain persons of disabilities, they ought not to deprive other persons of the right of having their cases tried by jurors acting under the solemn sanctity of an oath. There were already several grounds which entitled the parties to a case to challenge jurors "for good cause," and he proposed by this Amendment to make this statement on the part of a juror "good cause." He should certainly press this Amendment to a Division.

Moved, after Clause 2, to insert as a new Clause— Such an objection and statement, on the ground that he has no religious belief, as in the first section of this Act mentioned, if made by any juror, shall be good cause of challenge to that juror by the Crown or by the prisoner in any criminal proceeding, and by any party thereto in any civil cause or matter."—(The Lord Chancellor.)


said, he had the greatest respect for anything coming from the noble and learned Lord; but he nevertheless would earnestly appeal to their Lordships to reject this Amendment. The Bill was an attempt to terminate an irritating and distressing controversy, and such an Amendment would seriously affect this object. The Bill was a compromise agreed to by persons in the other House who were interested in the same view of religion as that which he and his noble and learned Friend held. He thought, therefore, that such a Bill ought not to be altered unless it was absolutely necessary that there should be some alteration. The Amendment, if carried, would inevitably keep open an irritating and distressing controversy—that seemed to him sufficient reason for refusing to adopt it—while it would be very small in its effect. The challenge for good cause was not necessary, and never came into play until the challenges which every party was entitled to make, or did make, without stating any cause, were entirely exhausted; therefore, the Amendment would, in addition to casting a slur, keep open a sore in order to give a right of challenge for cause which would hardly ever arise. Besides that, it seemed to him that the Amendment would bring about an extraordinary anomaly, because a person making a declaration would be allowed to give evidence upon which the jury and the Court must act in a matter in which he was interested, and five minutes afterwards objection might be raised to his going on a jury to try a matter in which he was not interested. He was afraid that the Amendment would, if their Lordships carried it, bring about the loss of the Bill. He earnestly advised their Lordships to pass the Bill without any Amendment of any kind.


said, he could not agree with the noble and learned Lord who had just sat down. A witness who made a declaration was subjected, if he stated that which was not true, to the penalties of perjury; but a juror who gave a false verdict could not be subjected to those penalties. If a man came forward as a juryman and objected to be sworn because he had no religious belief, thousands of persons might very fairly object to be tried by him. He did not see how the Amendment would cast a slur upon any man. By objecting to a man who held no religious belief going on the jury, they would not say that he was a dishonest man, but simply that a person to be tried had a right as of old to be tried before a jury of 12 good sworn men.


said, he did not agree with the opinion expressed by the late Mr. Justice Mellor in regard to oaths—namely, that they were of very little value. He regarded them as of very considerable value, especially in those oaths the breach of which was followed by possible punishment. A man with an oath which he believed was binding on his conscience must have an additional inducement to tell the truth. Undoubtedly, where there was no penalty, the efficacy of the oath was not so great as in other cases, but even then it had some effect. He had seen a jury who had made up their minds to give an untrue verdict so shaken by being abjured to tell the truth upon the oath they had taken that they had done so. But the Bill dealt with those who could not truthfully take an oath. If it was right, then the Amendment was not right. The Bill affirmed the fitness of the man who could not take an oath; the Amendment said that he might be objected to as unfit. The Act, of course, would be the Act of Crown, Lords, and Commons, and yet the Amendment said the Crown might object to the man it had declared fit.


said, that he had listened to his noble and learned Friend opposite (Lord Bramwell), but had not been convinced by what struck him as rather loose logic; for if his noble Friend was right, as he doubtless was, in pronouncing unsworn jurymen less trustworthy than sworn ones, he did not see what right they had to force the inferior juryman on either prisoners, or suitors, or the Crown. But he had been convinced by the Master of the Rolls (Lord Esher) that this Amendment was unnecessary, because, by the existing law in criminal cases and the practice in civil cases, the parties could protect themselves.


said, it was a mistake to suppose that the Amendment was rendered unnecessary by the existence of a general right of challenge. In cases of felony there was a right of challenge; but the law gave no such general right of challenge as had been supposed. A loose practice had sprung up. Counsel on both sides might, indeed, agree to say in respect to a particular person—"Don't let that gentleman get into the jury-box;" but the question with which their Lordships were dealing was what the law ought to be; and he was surprised to hear what had fallen from his noble and learned Friend the Master of the Rolls on that point.


said, that in his experience of 40 years it was the invariable practice that if a solicitor said to the officers of the Court—"Please don't call that man," without any demur the man was told to stand down.


said, that might be by the concession of both of the parties; but they were now concerned with what was the law, and what the law ought to be, and a practice of that sort ought not to guide them in determining that question. The noble and learned Lord opposite said that the promissory oath of a juryman was of considerable value, and that he had known jurymen who would have attempted to find a verdict contrary to the evidence being so impressed by having the obligation of the oath they had taken impressed upon them that they had been compelled to find a verdict according to the evidence. Could they have a stronger argument than that in favour of this Amendment? If this Bill were passed as it stood, they would force every suitor and every prisoner, whether he liked it or not, to have his case tried by a person or persons who had not that sense of obligation which the noble and learned Lord opposite had shown to be so important. He trusted that their Lordships would give all the subjects of the Queen the right of being tried, if they wished it, by persons who were impressed with the sense of religious obligation.


was understood to say that the Lord Chancellor appeared to him to be right in his view of the law and the Master of Rolls to be right in regard to the practice. That was a practical matter; and the practice was that if objection was taken to a juryman, and both sides agreed not to have him on the jury, he was not forced into the jury-box unless it was absolutely necessary through the panel running low. He earnestly trusted that his noble and learned Friend the Lord Chancellor would reconsider the matter, and not press his Amendment, but would allow that long and painful controversy now to be settled by the compromise which had been anxiously arrived at.


said, he hoped that their Lordships would not accept the Amendment, which would still leave open one grave and very important part of a long controversy which it was most desirable to have settled. He would ask, was it not rather absurd that when the Judge and the witnesses could affirm, a juror must be put under the stigma to which a challenge of that kind would subject him? Again, by that Amendment, they would place a scrupulous and honest unbeliever under a stigma. The scrupulous and honest man who thought that he could not take the oath would be liable to a challenge, and, therefore, would be placed under a religious stigma, whereas the less scrupulous man, who was a disbeliever, would be sworn and go on the jury. He begged their Lordships not to accept the Amendment, but to leave the Bill as it stood, and so help forward in a small way the settlement of this great controversy.


said, he differed from the noble and learned Lord behind him. If the question were a new one, he might take a different course, and consider the whole question an open one; but it was no longer in this position. Progress had been made in the direction of settling this controversy, and they could not go back. This was a Bill to remove a disability, and it seemed to him absurd that it should depend on any one person as to whether or not a man should be relieved from that disability, that it should no longer depend on Parliament, but on a person taking an objection in Court.


argued that the observations of the noble Earl in charge of the Bill would apply with equal force and cogency to affirmations as to oaths. To be logical, the noble Earl ought to abolish all affirmations, and so prevent anyone from being called upon to take an oath of any kind.


was understood to retort that there were several noble Lords who were willing to see the oath abolished for affirmation, but who, in order to agree to the compromise, were willing to abstain from proposing Amendments. This was an example which it would be well for the noble and learned Lord to follow.

On Question? Their Lordships divided:—Contents 14; Not-Contents 54: Majority 40.

Resolved in the Negative.

Bill reported without Amendment; and to be read 3a on Tuesday next.