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THE TRUE STORY
OF
MY PARLIAMENTARY
STRUGGLE.
BY
CHARLES BRADLAUGH.
[Illustration]
LONDON:
FREETHOUGHT PUBLISHING COMPANY,
28, STONECUTTER STREET, E.C.
1882.
PRICE SIXPENCE
LONDON:
PRINTED BY ANNIE BESANT AND CHARLES BRADLAUGH,
28, STONECUTTER STREET, E.C.
So much misapprehension and misrepresentation prevails as to what has
really taken place in the House of Commons with reference to my
Parliamentary struggle, that I reprint the Report of the Second Select
Committee and the Evidence taken before such Committee, together with my
three speeches at the bar and the resolutions of the House: these
together giving the actual facts.
_Ordered_,--[Tuesday, 25th May 1880]:--THAT Mr. Bradlaugh, the Member for
Northampton, having claimed at the Table of this House to make an
Affirmation or Declaration instead of the Oath prescribed by Law,
founding his claim upon the terms of the Act 29 & 30 Vict. c. 19, and the
Evidence Amendment Acts of 1869 and 1870, and stating that he had been
permitted to affirm in Courts of Justice by virtue of the said Evidence
Amendment Acts: And it having been referred to a Select Committee to
consider and report their opinion whether persons entitled, under the
provisions of the Evidence Amendment Act, 1869, and the Evidence
Amendment Act, 1870, to make a solemn Declaration instead of an Oath in
Courts of Justice, may be admitted to make an Affirmation or Declaration
instead of an Oath in this House, in pursuance of the Acts 29 & 30 Vict.
c. 19, and 31 & 32 Vict. c. 72; And the said Committee having reported
that in their opinion such persons cannot be admitted to make an
Affirmation or Declaration, instead of an Oath in pursuance of the said
Acts:
And Mr. Bradlaugh having since come to the Table of the House for the
purpose of taking the Oath prescribed by the 29 & 30 Vict. c. 19, and the
31 & 32 Vict. c. 72, and objection having been made to his taking the
said Oath, it be referred to a Select Committee to inquire into and
consider the facts and circumstances under which Mr. Bradlaugh claims to
have the Oath prescribed by the 29 & 30 Vict. c. 19, and 31 & 32 Vict. c.
72, administered to him in this House, and also as to the Law applicable
to such claim under such circumstances, and as to the right and
jurisdiction of this House to refuse to allow the said form of the Oath
to be administered to him, and to report thereon to the House, together
with their opinion thereon.
_Ordered_,--[Friday, 28th May 1880]:--THAT the Committee do consist of
twenty-three Members.
Committee nominated of--
Mr. Whitbread.
Sir John Holker.
Mr. John Bright.
Lord Henry Lennox.
Mr. Massey.
Mr. Staveley Hill.
Sir Henry Jackson.
Mr. Attorney General.
Mr. Solicitor General.
Sir Gabriel Goldney.
Mr. Grantham.
Mr. Pemberton.
Mr. Watkin Williams.
Mr. Walpole.
Mr. Hopwood.
Mr. Beresford Hope.
Major Nolan.
Mr. Chaplin.
Mr. Serjeant Simon.
Mr. Secretary Childers.
Mr. Trevelyan.
Sir Richard Cross.
Mr. Gibson.
THAT the Committee have power to send for Persons, Papers, and Records.
THAT Five be the Quorum of the Committee.
REPORT.
THE SELECT COMMITTEE appointed to inquire into and consider the facts
and circumstances under which Mr. BRADLAUGH claims to have the OATH
prescribed by the 29 & 30 Vict., c. 19, and 31 and 32 Vict., c. 72,
administered to him in this House; and also as to the LAW
applicable to such claim under such circumstances; and as to the
right and jurisdiction of this House to refuse to allow the said
form of the OATH to be administered to him; and to Report thereon
to the House, together with their Opinion thereon:--HAVE agreed to
the following REPORT:--
In pursuance of the terms of the reference to your Committee, they have
inquired into and considered (1) the facts and circumstances under which
Mr. Bradlaugh claims to have the oath prescribed by the Parliamentary
Oaths Act, 1866, and the Promissory Oaths Act, 1868, administered to him
in the House, (2) the Law applicable to such claim under such
circumstances, and (3) the right and jurisdiction of the House to refuse
to allow the form of the said Oath to be administered to him.
In order to carry out such inquiry and consideration, your Committee
thought it right to examine Sir T. Erskine May as a witness before them.
Mr. Bradlaugh applied to be permitted to make a statement to your
Committee, and the application was granted. After such statement had been
made by Mr. Bradlaugh, he submitted himself for examination, and was
examined by any Members of your Committee who desired to put questions to
him. Under the circumstances appearing in the Evidence and in the
Appendix to this Report, your Committee admitted in evidence a letter
written by Mr. Bradlaugh to certain newspapers, dated 20th May, 1880. All
the evidence taken by your Committee appears in the Appendix to this
Report.
_Facts of the Case._
The facts and circumstances under which Mr. Bradlaugh claimed to take and
subscribe the Oath are as follow: On Monday, the 3rd of May, Mr.
Bradlaugh came to the Table of the House and claimed to be allowed to
affirm, as a person for the time being by law permitted to make a solemn
affirmation instead of taking an oath; and on being asked by the Clerk
upon what grounds he claimed to make an affirmation, he said that he did
so by virtue of the Evidence Amendment Acts, 1869 and 1870. Whereupon Mr.
Speaker informed Mr. Bradlaugh, "that if he desired to address the House
in explanation of his claim, he might be permitted to do so." In
accordance with Mr. Speaker's intimation, Mr. Bradlaugh stated shortly
that he relied on the Evidence Further Amendment Act, 1869, and the
Evidence Amendment Act, 1870, adding, "I have repeatedly, for nine years
past, made an affirmation in the highest courts of jurisdiction in this
realm; I am ready to make such a declaration or affirmation." Thereupon
Mr. Speaker acquainted the House that Mr. Bradlaugh having made such
claim, he did not consider himself justified in determining it; and
having grave doubts on the construction of the Acts above stated, he
desired to refer the matter to the judgment of the House. Thereupon a
Select Committee was appointed to consider and report their opinion
whether persons entitled, under the provisions of the Evidence Amendment
Acts, 1869 and 1870, to make a solemn declaration instead of an oath in
courts of justice, might be admitted to make an affirmation or
declaration instead of an oath, in pursuance of the Acts 29 & 30 Vict. c.
19, and 31 & 32 Vict. c. 72; and on the 20th of May the Committee
reported that, in their opinion, persons so entitled could not be
admitted to make such affirmation or declaration instead of an oath in
the House of Commons.
On the day after the receipt of this Report, Mr. Bradlaugh presented
himself at the table of the House to take and subscribe the Oath; and was
proceeding to do so, when Sir Henry Drummond Wolff, one of the Members
for Portsmouth, objected thereto, and Mr. Bradlaugh having been ordered
to withdraw, Sir H. D. Wolff moved, "That, in the opinion of the House,
Mr. Bradlaugh, the Member for Northampton, ought not to be allowed to
take the Oath which he then required to be administered to him, in
consequence of his having previously claimed to make an affirmation or
declaration instead of the Oath prescribed by law, founding his claim
upon the terms of the Act 29 & 30 Vict. c. 19, and the Evidence Amendment
Acts of 1869 and 1870; and on the ground that under the provisions of
those Acts the presiding judge at a trial has been satisfied that the
taking of an oath would have no binding effects on his conscience." This
Motion was superseded by an Amendment appointing your Committee.
_The Law Applicable to Mr. Bradlaugh's Claim._
Your Committee have been furnished by Sir T. Erskine May with a list of
precedents which illustrate the jurisdiction and proceedings of the House
in regard to the taking of Oaths. These precedents, and others which Mr.
Bradlaugh placed before your Committee as bearing on the case, will be
found in the Appendix to this Report. They may generally be divided into
three classes: first, cases of refusal to take the Oath; secondly, claims
to make an Affirmation, instead of taking the Oath; and, thirdly, claims
to omit a portion of the Oath of Abjuration. Among them there is no
precedent of any Member coming to the table to take and subscribe the
Oath, who has not been allowed to do so, nor of any Member coming to the
table and intimating expressly, or by necessary implication, that an oath
would not, as an oath, be binding on his conscience. The present case is,
therefore, one of first impression.
Now there is not only a _prima facie_ right, but it is the duty of every
Member who has been duly elected to take and subscribe the Oath, or to
affirm according to the Statute. No instance has been brought to the
attention of your Committee in which any inquiry has been made into the
moral, religious, or political opinion of the person who was desirous to
take any Promissory Oath, or of any objection being made to his taking
such Oath. It would be impossible to foresee the evils which might arise
if a contrary practice were sanctioned. But the question remains whether,
if a Member when about to take the Oath should voluntarily make
statements as to the binding effect of the Oath on his conscience, it is
not within the power of the House to take such statements into
consideration, and determine whether such member would, if he went
through the form of taking the Oath, be duly taking it within the
provisions of the Statute. In the present instance, when Mr. Bradlaugh
claimed under the Parliamentary Oaths Acts his right to affirm, and also
stated that he had on several occasions been permitted in a Court of
Justice to affirm, and had affirmed under the Evidence Amendment Acts,
1869 and 1870, he thereby in effect informed the House that on such
occasions a judge of such court had been satisfied that an oath would
have no binding effect upon his conscience. Your Committee did not think
it right to accept this implication as conclusive without permitting Mr.
Bradlaugh an opportunity of making a statement to, and giving evidence
before, them. Nothing that has come before your Committee has affected or
altered their views as to the effect of that which occurred when Mr.
Bradlaugh claimed to affirm, as above stated.
_As to the Right and Jurisdiction of the House._
As to the right and jurisdiction of the House to refuse to allow the form
of the Oath prescribed to be taken by duly elected Members to be taken by
them, your Committee are of opinion that there is and must be an inherent
power in the House to require that the law by which the proceedings of
the House and of its Members in reference to the taking of the
Parliamentary Oath is regulated, be duly observed. But this does not
imply that there is any power in the House to interrogate any Member
desirous to take the Oath of Allegiance upon any subject in connection
with his religious belief, or as to the extent the Oath will bind his
conscience; or that there is any power in the House to hear any evidence
in relation to such matters.
And your Committee are of opinion that by and in making the claim to
affirm, Mr. Bradlaugh voluntarily brought to the notice of the House that
on several occasions he had been permitted in a Court of Justice to
affirm, under the Evidence Amendment Acts, 1869 and 1870, in order to
enable him to do which a Judge of the Court must have been satisfied that
an Oath was not binding upon Mr. Bradlaugh's conscience; and, as he
stated he had acted upon such decisions by repeatedly making the
Affirmation in Courts of Justice; and, as above stated, nothing has
appeared before your Committee to cause them to think Mr. Bradlaugh
dissented from the correctness of such decisions, your Committee are of
opinion that, under the circumstances, the compliance by Mr. Bradlaugh
with the form used when an oath is taken would not be the taking of an
Oath within the true meaning of the Statutes 29 Vict. c. 19. and 31 & 32
Vict. c. 72; and, therefore, that the House can, and in the opinion of
your Committee ought, to prevent Mr. Bradlaugh going through this form.
But your Committee desire to point out to your Honorable House the
position in which Mr. Bradlaugh will be placed if he is not allowed
either to take the Oath or to affirm.
If the House of Commons prevent a duly elected Member from taking the
Oath or Affirming, there is no power of reviewing or reversing that
decision, however erroneous it may be in point of law.
But it appears to your Committee that if a Member should make and
subscribe the Affirmation in place of taking and subscribing the Oath, it
would be possible, by means of an action brought in the High Court of
Justice, to test his legal right to make such Affirmation.
The Committee appointed to inquire into the law relating to the right of
certain persons to affirm in effect recorded that Mr. Bradlaugh was not
entitled by law to make the Affirmation.
But, from the fact that this Report was carried by the vote of the
Chairman, thus showing a great division of opinion amongst the members of
that Committee, the state of the law upon the subject cannot be regarded
as satisfactorily determined. Under these circumstances it appears to
your Committee that Mr. Bradlaugh should have an opportunity of having
his statutory rights determined beyond doubt by being allowed to take the
only step by which the legality of his making an Affirmation can be
brought for decision before the High Court of Justice.
The House, by an exercise of its powers, can, doubtless, prevent Mr.
Bradlaugh from obtaining such judicial decision; but your Committee
deprecate that course.
Your Committee accordingly recommend that should Mr. Bradlaugh again seek
to make and subscribe the Affirmation he be not prevented from so doing.
_16 June, 1880._
LIST OF WITNESSES.
_Wednesday, 2nd June, 1880._
SIR THOMAS ERSKINE MAY, K.C.B.
MR. CHARLES BRADLAUGH, M.P.
_Monday, 7th June, 1880._
MR. CHARLES BRADLAUGH, M.P.
MINUTES OF EVIDENCE.
_Wednesday, 2nd June, 1880._
MEMBERS PRESENT:
Mr. Attorney General.
Mr. John Bright.
Mr. Childers.
Sir Richard Cross.
Mr. Gibson.
Sir Gabriel Goldney.
Mr. Grantham.
Mr. Staveley Hill.
Sir John Holker.
Mr. Beresford Hope.
Mr. Hopwood.
Sir Henry Jackson.
Lord Henry Lennox.
Mr. Massey.
Major Nolan.
Mr. Pemberton.
Mr. Serjeant Simon.
Mr. Solicitor General.
Mr. Trevelyan.
Mr. Walpole.
Mr. Whitbread.
Mr. Watkin Williams.
The Right Honorable SPENCER HORATIO WALPOLE in the Chair.
Sir THOMAS ERSKINE MAY, K.C.B.; Examined.
1. CHAIRMAN: You are the Clerk of the House of Commons?--I am.
2. You, I believe, are perfectly acquainted with what took place when Mr.
Bradlaugh came to the table of the House, and proposed to make his
affirmation instead of taking the oath?--Yes, I was personally present on
that day.
3. Will you have the kindness to state to the Committee exactly what took
place on that occasion, in order that we may have the facts upon our
proceedings?--I will read what occurred, mainly from the Votes and
Proceedings of the House, in which an accurate and authentic record of
the proceedings of that day will be found. It appears that on Monday the
3rd of May, 1880, "Mr. Bradlaugh, returned as one of the Members for the
borough of Northampton, came to the table and delivered the following
statement in writing to the Clerk: 'To the Right Honorable the Speaker of
the House of Commons. I, the undersigned Charles Bradlaugh, beg
respectfully to claim to be allowed to affirm, as a person for the time
being by law permitted to make a solemn affirmation or declaration,
instead of taking an oath. (Signed) CHARLES BRADLAUGH.' And being asked
by the Clerk upon what grounds he claimed to make an affirmation, he
answered: By virtue of the Evidence Amendment Acts, 1869 and 1870.
Whereupon the Clerk reported to Mr. Speaker, that Mr. Bradlaugh, Member
for the borough of Northampton, claimed to make an affirmation or
declaration instead of taking the Oath prescribed by law, in virtue of
the provisions of the Evidence Amendment Acts, 1869 and 1870. Mr. Speaker
thereupon informed Mr. Bradlaugh that if he desired to address the House
in explanation of his claim he might be permitted to do so. Mr. Bradlaugh
addressed the House in accordance with Mr. Speaker's intimation, and then
he was directed to withdraw." The Committee will observe that there is no
entry in the Votes of the words used by Mr. Bradlaugh; it is not
customary on such occasions to make an entry of the observations made,
which are considered to be part of the debates of the House, which are
not recorded in the Votes and Proceedings; and there was no shorthand
writer authorised by the House to take notes, and therefore there could
have been no authentic record upon which one could rely.
4. Have you any reason to believe that something was said upon that
occasion by Mr. Bradlaugh other than what appeared upon the Votes?--Mr.
Bradlaugh's observations were very short. He repeated that he relied upon
the Evidence Further Amendment Act, 1869, and the Evidence Amendment Act,
1870, adding, "I have repeatedly, for nine years past, made an
affirmation in the highest courts of jurisdiction in this realm; I am
ready to make such a declaration or affirmation." Substantially those
were the words which he addressed to the Speaker.
5. What took place after that?--Whereupon Mr. Speaker addressed the House
as follows: "I have now formally to acquaint the House that Mr.
Bradlaugh, Member for the borough of Northampton, claims to make an
affirmation or declaration instead of the oath prescribed by law. He
founds this claim upon the terms of the 4th clause of the Act 29 and 30
Vict., c. 19, and the Evidence Amendment Acts, 1869 and 1870. I have not
considered myself justified in determining this claim myself, having
grave doubts on the construction of the Acts above stated, but desire to
refer the matter to the judgment of the House."
6. That is substantially all that took place upon that occasion?--I
presume the Committee will scarcely desire that I should proceed through
all the subsequent Votes of the House in regard to the appointment of the
Committees.
7. There is nothing beyond what you have stated which is material for the
Committee to consider?--No, nothing besides what happened on that day in
reference to this matter.
8. You are, of course, acquainted with the terms of the reference to this
Committee.--Yes.
9. What were the proceedings which took place after the Report of the
former Committee?--The Report of the Committee was ordered to lie upon
the table, and no further proceedings were taken upon it; it lies upon
the table at present.
10. Mr. GIBSON: On what day was it laid upon the table?--On the 20th of
May, the day on which the House assembled for business.
11. Mr. ATTORNEY GENERAL: I think some of the members of the Committee
would like to have some account of what took place in the interval
between the time when Mr. Bradlaugh claimed to make the affirmation, and
the time when he appeared at the table to take the Oath?--Mr. Bradlaugh
presented himself at the table to be sworn on the 21st of May, the day
after the receipt of the Report from the Committee; and if the Committee
would desire it, I can read from the Minutes what took place upon that
occasion. "Mr. Bradlaugh, returned as one of the Members for the borough
of Northampton, came to the table to take and subscribe the Oath, and the
Clerk was proceeding to administer the same to him, when Sir Henry
Drummond Wolff, Member for Portsmouth, rose to take objection thereto,
and submit a motion to the House; whereupon Mr. Speaker directed Mr.
Bradlaugh to withdraw." And then, as the Committee are aware, several
proceedings occurred, which extended over some days: the Committee will
scarcely desire them to be read.
12. CHAIRMAN: Those proceedings are really stated in the Order of
Reference to this Committee?--Yes.
13. Mr. GIBSON: At what date did this Parliament meet for the first
time?--On Thursday, the 29th of April.
14. And on what day did Mr. Bradlaugh claim to make the affirmation?--On
Monday, the 3rd of May.
15. The swearing of Members had been going on in the meantime, had it
not?--The swearing of Members began on Friday, the 30th of April.
16. You are acquainted with Mr. Bradlaugh's appearance; are you yourself
aware whether he had been in the House during the swearing of Members on
any of the intervening days?--He had been about the House,
unquestionably.
17. Mr. Serjeant SIMON: Mr. Bradlaugh was present, I believe, and voted
when the Speaker was elected?--Yes; none of the members had then been
sworn.
18. CHAIRMAN: Since this Committee has been appointed have you made a
search into the Journals of the House for any precedents which bear upon
the question before the Committee?--Yes, I directed the Clerk of the
Journals to make a search for every precedent which would tend to
illustrate the jurisdiction and proceedings of the House in regard to the
taking of oaths.
19. What is the result of the search?--The result of that search is the
paper which is upon the table to-day, and in the hands of all the Members
of the Committee.
20. I see that one of those is a precedent of a Member disabled for
having sat in the House without taking the Oath; then there is a
precedent of a Member being admitted to sit without taking the Oath of
Allegiance and Supremacy; then there are precedents of Members being
discharged for declining to take the Oath; then there is a precedent of a
Member, being a Quaker, refusing to take the Oath; then there is a
precedent of a Member expelled for absconding, and not taking the Oath;
then there is a precedent of a Member refusing to take the Oath of
Supremacy; then there is a precedent of a Member, being a Quaker,
claiming to make an affirmation; then there are precedents of Members
omitting the words in the Oath of Abjuration, "on the true faith of a
Christian;" and lastly, the precedent of a Member stating that he had a
conscientious objection to take the Oath. I should like to ask whether
there is any precedent amongst those of a member coming to the table and
stating that he was ready to take the Oath, and any objection being taken
to him in consequence of that statement?--No, there is no precedent to
that effect, unless it might be argued that the case of Mr. O'Connell, in
1829, was, to a certain extent, analogous. He claimed, as the Committee
are aware, to take the Oath recently provided by the Catholic Relief Act,
and which, he contended, was the oath that he was entitled to take; it
was a question of law whether that was the oath which he could take.
21. In that case he refused to take the old oath, and he offered to take
the new oath under the Catholic Relief Act?--That is so.
22. And the House refused, I believe, to allow him to take that
oath?--That was the case. I may state briefly that these precedents may
generally be divided into three classes: first, cases of refusal to take
the oath; secondly, claims to make an affirmation instead of taking the
oath; and thirdly, claims to omit a portion of the Oath of Abjuration.
With one or two exceptional cases, those three classes comprehend all the
cases which have been laid before the Committee.
23. Mr. BRADLAUGH (through the Committee): I should like to ask upon
that whether the case of Daniel O'Connell was not a case of absolute
refusal by the Member to take the oath required by law?--I think the best
way will be, perhaps, to read the precedent from this paper, and then any
inference can be drawn from it. It is at page 5. "Precedent of Member
refusing to take the Oath of Supremacy; Daniel O'Connell, Esq.,
professing the Roman Catholic religion, returned knight of the shire for
the county of Clare, being introduced in the usual manner, for the
purpose of taking his seat, produced at the table a certificate of his
having been sworn before two of the deputies appointed by the Lord
Stewart, whereupon the Clerk tendered to him the Oaths of Allegiance,
Supremacy, and Abjuration; upon which Mr. O'Connell stated that he was
ready to take the Oaths of Allegiance and Abjuration, but that he could
not take the Oath of Supremacy, and claimed the privilege of being
allowed to take the oath set forth in the Act passed in the present
Session of Parliament 'for the relief of His Majesty's Roman Catholic
subjects'; whereupon the Clerk having stated the matter to Mr. Speaker,
Mr. Speaker informed Mr. O'Connell that, according to his interpretation
of the law, it was incumbent upon Mr. O'Connell to take the Oaths of
Allegiance, Supremacy and Abjuration, and that the provisions of the new
act applied only to Members returned after the commencement of the said
Act, except in so far as regarded the repeal of the declaration against
transubstantiation; And that Mr. O'Connell must withdraw unless he were
prepared to take the Oaths of Allegiance, Supremacy, and Abjuration.
Whereupon Mr. O'Connell withdrew. Motion, That Mr. O'Connell be called
back and heard at the table. Debate arising, a Member stated that he was
requested by Mr. O'Connell to desire that he might be heard. Debate
adjourned. Resolved, That Mr. O'Connell, the Member for Clare, be heard
at the bar, by himself, his counsel or agents, in respect of his claim to
sit and vote in Parliament without taking the Oath of Supremacy. Mr.
O'Connell was called in and heard accordingly: and being withdrawn;
Resolved, That it is the opinion of this House that Mr. O'Connell, having
been returned a Member of this House before the commencement of the Act
passed in this Session of Parliament 'for the relief of His Majesty's
Roman Catholic subjects,' is not entitled to sit or vote in this House
unless he first take the Oath of Supremacy. Ordered, That Mr. O'Connell
do attend the House this day, and that Mr. Speaker do then communicate to
him the said resolution, and ask him whether he will take the Oath of
Supremacy. And the House being informed that Mr. O'Connell attended at
the door, he was called to the Bar, and Mr. Speaker communicated to him
the resolution of the House of yesterday, and the order thereon, as
followeth." Then the resolution and the order are repeated. "And then Mr.
Speaker, pursuant to the said order, asked Mr. O'Connell whether he would
take the said Oath of Supremacy? Whereupon Mr. O'Connell requested to see
the said Oath, which being shown to him accordingly, Mr. O'Connell stated
that the said Oath contained one proposition which he knew to be false,
and another proposition which he believed to be untrue; and that he
therefore refused to take the said Oath of Supremacy. And then Mr.
O'Connell was directed to withdraw, and he withdrew accordingly;" and
then a new writ was ordered.
24. Mr. JOHN BRIGHT: Were those oaths separate oaths?--Yes, they were
three separate oaths.
25. And they require three separate acts in taking them?--Yes.
26. Mr. ATTORNEY GENERAL: I think the result is that the House first
determined that the Oath of Supremacy which ought to be taken by Mr.
O'Connell was the old oath, and not the oath under the Catholic Relief
Act?--Clearly.
27. And having determined that it was the old oath that required to be
taken, Mr. O'Connell refused to take it?--Certainly.
28. Mr. BRADLAUGH (through the Committee): Have you searched for any
precedent affecting the taking of the oath by a Member alleged to be
disqualified or ineligible; has your attention been called to the case of
John Horne Tooke, in Volume 35 of Parliamentary History, in the year
1801, commencing at page 956?--Not in respect of any question relating to
oaths: it is not amongst these precedents.
29. As a fact, was Mr. John Horne Tooke's capacity to sit in the House
challenged in this case?--Yes, as being in Holy Orders, but not in
relation to any question of taking the oath.
30. The next question that I have to ask is whether your attention has
been called to the case of the alleged ineligibility of Francis Bacon,
the King's Attorney General, in 1614, cited in the Commons Journal,
Volume I., pp. 459 and 460?--No, my attention has not been directed to
any questions of incapacity: it has been confined to questions arising
out of the taking of the oaths prescribed by law.
31. There is one other question that I should like to ask, and that is
whether your attention has been called to any case in which the House has
discussed and dealt with the election of a Member, before that Committee
was sworn?--With regard to the Jews, that would apply to Baron Rothschild
and to Alderman Salomons.
32. I do not mean a case of a Member refusing to be sworn, but a case in
which the House has dealt with the election before the Member had been
sworn; has your attention been called to that?--No.
33. There is one case, the case of John Wilkes; the cases of O'Donovan
Rossa and Mitchell were cases of legal disability; has your attention
been called to any case in which the House has dealt with the election of
a Member before he was sworn except for statutory disability?--Sir John
Leedes sat in the House without having taken the Oath, and therefore he
had clearly vacated his seat, and a new writ was issued.
34. I mean a case in which the Member has not been sworn, and in which
there has been a discussion upon his eligibility outside the precedents
which you have handed in; I refer to the case of John Wilkes, which is to
be found in 38 Commons Journals, p. 977, and Cavendish's Parliamentary
Debates, Volume I., extending over many hundred pages, commencing at 827.
May I ask Sir Erskine May whether the practice has not been that when a
Member appears to take the Oaths within the limited time, all other
business is immediately to cease and not to be resumed until he has sworn
and has subscribed the roll?--That was the old practice, but it has been
superseded by a recent Standing Order under the Parliamentary Oaths Act
of 1866, and the rule is now different; Members can be sworn until the
commencement of public business and afterwards; but no debate or business
may be interrupted for that purpose.
35. That is not quite the question that I wish to put; the question that
I wish to put is whether it is not now and has not always been the
practice of the House that within a limited time, whatever that time may
be, if a Member appears to take the oaths all other business is
immediately to cease and not to be resumed until he has been sworn and
has subscribed the Roll?--That was the old practice, when the oaths were
required to be taken before four o'clock, but it has since been altered.
This is the present Standing Order under which the oaths are
administered, and this order was made in pursuance of the Parliamentary
Oaths Act of 1866: "That Members may take and subscribe the Oath required
by law at any time during the sitting of the House before the Orders of
the Day and Notices of Motions have been entered upon, or after they have
been disposed of, but no debate or business shall be interrupted for that
purpose."
36. Then I again repeat my question, whether the practice has not been
that a Member so appearing under the Standing Order just read to take the
oath, all other business is immediately to cease and not to be resumed
until he has been sworn and has subscribed the Roll?--I have already
stated that such was the old practice, which has been distinctly and
specifically superseded by the last Standing Order, which is now in
force.
37. Is that the Standing Order which you have just read?--Yes, that is
the Standing Order now in force.
38. Of course it will be a matter for argument whether it has altered it
or not, but is there any other Order altering this practice except the
one which you have just read?--There is no other Standing Order, and that
Standing Order was made, as I have already stated, in pursuance of the
Parliamentary Oaths Act of 1866, which authorised the House to make
regulations with regard to the swearing of Members.
39. But except so far as it may have been altered by the Standing Order
which you have just read, was the practice that a Member appearing to
take the oath all other business was to cease, and not to be resumed
until he had sworn and subscribed the Roll?--Yes, certainly.
40. Mr. ATTORNEY GENERAL: The present Standing Order is dated the 30th
April, 1866, is it not?--It is.
41. Mr. BRADLAUGH (through the Committee): Are you aware that the House
has refused to make any inquiry as to what is consistent, or what is not
consistent with the Oath of Allegiance taken by a Member?--I presume that
the reference must be to a case which arose in debate. That I do not
consider, in any way, in point in the present inquiry, but the question
was this: "In one case an attempt was made to obtain from a Member who
was about to bring forward a motion, a repudiation of statements made
elsewhere, which were alleged to be at variance with the oath he had
taken; but the Speaker stated that it was no part of his duty to
determine what was consistent with that oath, and that the terms of the
motion were not in violation of any rules of the House." That was a point
of Order, and had no reference whatever to the taking of the Oath.
42. Mr. ATTORNEY GENERAL: What was the motion?--It is in the 210th volume
of "Hansard's Debates," 3rd Series, page 252. It is at page 197 of my
book, in a note.
43. Mr. JOHN BRIGHT: In what year?--On the 19th March, 1872; there is
merely an incidental reference to it.
44. Mr. BRADLAUGH (through the Committee): Are you aware of any precedent
for the dealing by the House with the election of any Member not
disqualified by statute or common law, until after that Member had sat
and been sworn?--My attention has not been directed to any precedent
bearing upon that precise point, but I apprehend that the fact of whether
the Member had been sworn or not would not interfere with any
proceedings. For example, under an election petition, if a Member's seat
were contested, under the old system, the matter would have proceeded in
the usual way, without reference to the question of whether the Member
had taken the Oath or not.
45. But in such a case the Member would have been sworn, and would have
sat until the question was decided?--Not necessarily; under the terms of
the question I assume that he had not taken his seat.
46. Are there not very numerous cases in which with a petition against a
Member for alleged statutory disqualification that Member has been sworn
and has sat until the decision?--Unquestionably; there can be no doubt
about it; it frequently happens.
47. Then I ask whether there is any precedent whatever for the House
dealing with a Member's election or his right to sit, except in cases of
absolute statutory disqualification, until that Member has taken his seat
and the oaths?--So far as I understand the question, I should say that
whether the Member has been sworn, or not, the matter of his
disqualification, or of his right to sit would be open to the decision of
the House.
48. I am not arguing the point at the moment; I am only trying to get at
the fact. If you have not looked for it, of course I cannot have it; but
is there, so far as you know, any precedent of such a thing ever having
happened?--I know of none; but I have not searched for any such
precedent.
49. Mr. ATTORNEY GENERAL: It would not appear, would it?--I hardly know
how it would appear; unless one's attention were specifically drawn to
any case, there would be no means of discovering it.
50. Mr. BRADLAUGH (through the Committee): I will ask whether that
question was not raised in the case of Wilkes, and whether it was not in
the consideration of that case fully discussed, and whether the House did
not resolve that any such dealing with a member was subversive of the
rights of the whole body of electors of this kingdom?--I do not
understand how that case has any bearing upon the present question.
51. There are three cases: one of expulsion, two of election annulled,
and then ultimate reversal of the whole of that and expungment by the
House?--Yes, but that has no bearing upon the present case. Of course, I
am familiar with the case of Wilkes, but not in connection with any
matter arising out of the administration of oaths, which is the special
matter referred to this Committee.
52. Have you had your attention called to the Journal of the House of
Commons, Vol. I., page 460, in which Sir Francis Bacon, the King's
Attorney General, having sworn to his qualification, which was
challenged, the House said, "Their oath, their own consciences to look
into, not we to examine it?"--That case is not one of the precedents that
we have collected.
Mr. BRADLAUGH: They are entered extremely curiously, and one
can only take the decision. It begins on page 459, "Eligibility
of the Attorney General," and it does not show there that it is
Sir Francis Bacon: but I have learnt that by looking up the
other records; and there being then a statutory declaration
which lasted until a few years ago for all counsel, solicitors,
and practising men of the law, it was objected that the King's
Attorney General could not sit; it appears that he had to swear
to his qualification, and the question of his oath and of his
disqualification, being Attorney General, were put, and the
House said, "Their oath, their own consciences to look into,
not we to examine it," and they left him in the House,
resolving that no future Attorney General should sit in it.
CHAIRMAN: That was the case which was raised as to whether the
law officers of the Crown, who had for certain purposes seats
in the House of Lords, had seats in the House of Commons.
Mr. BRADLAUGH: Not quite that. There was an obsolete statute of
the 46th Edward III., which was only repealed eight or nine
years ago, but which does not seem to have been attended to, by
which all practising barristers and solicitors were
disqualified for sitting for counties.
53. Mr. BERESFORD HOPE: Wilkes's precedent being expunged, is it still
legible in the Journal, and could it be produced for historical
information?--Certainly.
54. Major NOLAN: With regard to the evidence about O'Connell, I think you
stated that an Act was passed to enable O'Connell and his co-religionists
to sit in Parliament?--Not to enable O'Connell to sit in Parliament, but
to enable Roman Catholics to sit in Parliament.
55. O'Connell was not allowed to take advantage of that Act until he was
re-elected?--No, because he had been elected prior to the passing of the
Act, and the Act was clearly prospective.
56. Was the wording of that particular statute the reason why he was not
allowed to take advantage of that Act?--Certainly; distinctly.
57. Would it be possible for the present or any future Parliament to
pass an Act which would enable a man who had been elected previous to the
passing of the Act to sit in the House?--It is not for me to say what Act
of Parliament might be agreed to by Parliament, but that is quite a
distinct case. In that case Mr. O'Connell had actually been elected when
the Catholic Relief Act was passed, and there was a clause in the Act
which made its operation prospective, and therefore distinctly, and, I
believe, intentionally, excluding Mr. O'Connell from the benefits of the
Act.
58. Then he was only prevented from taking advantage of that Act owing to
the particular wording of that particular clause, and not owing to
anything inherent in the House of Commons?--Yes; the decision was founded
upon a literal construction of the words of the recent statute.
59. Mr. WHITBREAD: The case of Mr. O'Connell was this: that he declined
to take the oath which was required of Members of Parliament elected at
the time that he was elected, and that he requested to be allowed to take
another form of oath; he was ordered to withdraw, and the House
considered his case; is there anything that you have found in the
Journals or in the Debates to indicate that if Mr. O'Connell had been
willing to take the oath required of him by the House, the House would
have objected to his so taking it?--Certainly not; they put it to him
whether he would take the Oath of Supremacy, and upon the face of the
Journal, it would seem that if he had taken that oath, he would have been
admitted.
60. Mr. BRADLAUGH (through the Committee): After John Archdale had
claimed to affirm, did not the House absolutely order him to attend in
his place for the purpose of being sworn, and tender the oaths to
him?--Mr. Archdale was ordered to attend, and the House being informed
that Mr. Archdale attended according to order, his letter to Mr. Speaker
was read. That letter is printed at full length among the precedents.
"And the several statutes qualifying persons to come into and sit and
vote in this House were read, viz., of the 30 Car. II., 1 Will. and
Mariae, and 7 & 8 Will. and Mariae. And then the said Mr. Archdale was
called in, and he came into the middle of the House, almost to the table;
and Mr. Speaker, by direction of the House, asked him whether he had
taken the oaths, or would take the oaths, appointed to qualify himself
to be a Member of this House; to which he answered, That in regard to a
principle of his religion he had not taken the oaths, nor could take
them; and then he withdrew, and a new writ was ordered."
61. Mr. Serjeant SIMON: With reference to what the Honorable Member for
Bedford has put to you just now, Mr. O'Connell refused to take the Oath
of Supremacy on the ground that it contained matter which he knew to be
untrue, and other matter which he believed to be untrue?--Yes, he so
stated.
62. Thereupon he withdrew; but is there any precedent among the Journals
to show that a Member stating beforehand that what was contained in the
oath was untrue, or a matter of unbelief to him, has been allowed to take
the oath under such circumstances?--No, this is the only precedent, so
far as I know, of that particular character. The others are cases of
absolute refusal to take the oath, or a desire to make an affirmation
instead of an oath, or to leave out certain words of the Oath.
63. But is there any precedent where, as in the case of Mr. O'Connell, a
Member coming to the table of the House, has made a statement such as Mr.
O'Connell made, that the oath contains matter which he knows to be
untrue, or believes to be untrue, and has been allowed to take the oath
afterwards?--There is no case to be found, so far as I know; certainly
there is none in any of these precedents.
64. Mr. Secretary CHILDERS: Is the precedent in Mr. O'Connell's case
this; that on the 15th May Mr. O'Connell said that he could not take the
Oath of Supremacy, and that, nevertheless, on the 19th, he was asked
whether he would take the Oath of Supremacy, although he had previously
informed the House that he was unable to take it?--Yes, because he had
been heard, in the interval, upon his claim to take the new oath, under
the recent Catholic Relief Act.
65. But was not that a precedent for a Member who had already stated that
he could not take a certain oath, nevertheless being afterwards asked by
the House whether he would take it?--It so appears on the face of the
precedents.
66. I will put that question again more clearly; is it not the case that,
as appears on page 5 of the Paper which you have placed before us, Mr.
O'Connell on the 15th May said, that he could not take the Oath of
Supremacy?--Yes.
67. And that, nevertheless, on the 19th of May it was ordered that Mr.
Speaker do communicate to him the Resolution passed on the same day, and
ask him whether he would take the Oath of Supremacy?--It was so.
68. Although the House was aware that Mr. O'Connell had said that he
could not take it?--Yes; but as I observed before, in the interval he had
been heard upon the question of his right to take the new oath; and that,
I think, accounts for the fact that the question was repeated to him as
to whether, after the decision of the House had been communicated, he
still persisted in refusing to take the Oath of Supremacy.
69. Mr. WATKIN WILLIAMS: Was not Mr. O'Connell's objection to taking the
Oath of Supremacy an objection to the truth of the matter sworn to?--Yes,
certainly; and it was an oath which no Roman Catholic could take.
70. It was the truth of the matter which he was asked to pledge his oath
to that he objected to, and he did not express any disbelief in the
binding character of the oath itself?--No. Every Roman Catholic objected
to take the Oath of Supremacy; in fact, the Oath of Supremacy was
expressly designed to exclude them from Parliament.
71. Mr. ATTORNEY GENERAL: And in consequence of the objection a new form
of oath was put in the Catholic Relief Bill?--Certainly, because the Oath
of Supremacy was intended to exclude Roman Catholics, and did exclude
them, and was known to exclude them.
72. Mr. WATKIN WILLIAMS: It was not his inability to take the oath, but
his inability to pledge himself to the truth of what he was asked to
swear to?--Certainly.
73. Mr. STAVELEY HILL: I gather from you that the House never asked
O'Connell to take the oath after his giving the grounds of
recusancy?--Yes, that is so.
74. Mr. Serjeant SIMON: It appears that the Speaker first asked him
whether he would take the Oath of Supremacy, and then he says, No, and
gives those reasons?--Yes.
75. Mr. PEMBERTON: In addition to Mr. O'Connell's having been heard after
he had at first declined to take the oath, was there not some further
discussion in the House in which other Members took part?--Certainly;
those Debates will all be found in Hansard.
76. Sir GABRIEL GOLDNEY: His refusal to take the oath in the first
instance was accompanied by a claim at the same time to take the new
oath?--Clearly.
77. It was a refusal to take the oath accompanied by a claim for a new
one; afterwards he was allowed to be heard upon that point, and then it
was that the House, having decided that he could not be admitted on the
new oath, he was asked if he chose to take the old oath, which he refused
to do?--That is a correct statement of the case.
78. Mr. HOPWOOD: With regard to the point of the Standing Orders as to
which Mr. Bradlaugh has asked, as I understand you, under the old
practice, as pointed out in Hatsell, and as we know it existed, the
occasion of a Member coming to be sworn caused all other business to
cease?--Yes.
79. And then as you say, a Standing Order was passed that particular
times more appropriate should be allotted for taking those oaths?--Yes.
80. But even though that may be so at the time of taking an oath, no
other business can go on?--Clearly not; it is the sole business that is
transacted at the moment.
81. No other business can be interposed, and nothing else can be
proceeded with but the oath of the Member?--Certainly not; it is the
business of the moment, and no other business can interpose.
82. Mr. GIBSON: You have been asked by several honorable Members about
O'Connell's case; in your opinion, is there the slightest analogy between
the facts and circumstances in O'Connell's case and those of the case now
before the Committee?--I see none myself, but I would rather leave such
questions for the determination of the Committee. I have stated the case
in print, and of course the points of difference are matters of argument.
83. So far as you know, is there any precedent for permitting a Member of
the House of Commons to take the Oath after he has stated in the House
expressly, or by necessary implication, that it will have no binding
effect upon his conscience?--There is no such case on record, so far as I
have had the means of ascertaining.
Mr. CHARLES BRADLAUGH, a Member of the House; Examined:
84. CHAIRMAN: You were in the room, I think, when Sir Thomas Erskine May
gave that part of his evidence as to a matter which was not on the Votes
and Proceedings?--Yes, but which took place upon the occasion of my first
coming to offer to affirm.