read the statute of 1869, which says that the judge must satisfy himself
that the oath is not binding upon the conscience of the person wishing to
affirm, the words being, "If any person called to give evidence in any
court of justice, whether in a civil or criminal proceeding, shall object
to take an oath, or shall be objected to as incompetent to take an oath,
such person shall, if the presiding judge is satisfied that an oath would
have no binding effect on his conscience, make the following promise and
declaration"?--My interpretation is that upon certain answers being given
by the witness, the judge is bound to take his affirmation, even
supposing that the judge himself should not be of opinion that the oath
is not binding upon him; and it has been decided so by the Court of
Queen's Bench. In the case of _ex parte_ Lennard _v._ Woolrych, a man
tendered his affirmation at the Westminster Police Court, and the
magistrate asked him (I am repeating from memory, but repeating perfectly
accurately the substance of what appears in the affidavits filed in the
Court of Queen's Bench), "Why do you object?" He said, "I am an Atheist."
The magistrate refused to allow him to give evidence upon affirmation,
and the court held that upon hearing that answer there was enough under
the Act, and that the magistrate was bound to take the man's evidence,
and issued a mandamus to compel him.
99. You will not suppose that I am arguing with you, but as I understand
that case the witness who tendered himself having said he was an Atheist,
the court held that the magistrate was bound to draw the inference from
that assertion that the oath was not binding, and therefore to let him
make the affirmation?--That is so. Whether the presiding officer did draw
the inference or not, the court held that he was bound to.
100. Then I do not think that there is much difference between us; but I
assume that when you come to the table of the House of Commons, and asked
leave to make affirmation instead of taking the Oath, you were a person,
as I understand it, who, if you had gone into a court of justice and made
the same request, would have been held by the presiding judge to be one
upon whom the oath would have no binding effect?--I did think so when I
applied to affirm. I do not think so since the Report of your Committee,
for your Committee has reported that the two oaths are entirely
different.
101. It is a question for you: do you draw any distinction between the
binding effect upon your conscience of the Assertory Oath, as it is
called, and the Promissory Oath?--Most certainly I do. The Testimony Oath
is not binding upon my conscience, because there is another form which
the law has provided which I may take, which is more consonant with my
feelings. The Promissory Oath is and will be binding upon my conscience
if I take it, because the law, as interpreted by your Committee, says
that it is the form which I am to take, and the Statute requires me to
take it.
102. Pray do not answer this question unless you like: am I to understand
you that the binding effect upon your conscience of the Oath depends upon
whether there is an alternative method of taking that which is to you
equivalent to the oath?--No, most certainly not. Any form that I went
through, any oath that I took, I should regard as binding upon my
conscience in the fullest degree. I would go through no form, I would
take no oath, unless I meant it to be so binding.
103. Pray object if you do not wish to answer this question: By virtue of
what do you regard that assertion which you make within the Oath as
binding?--I have not caught your question, if you will pardon me for
saying so.
104. By virtue of what portion of what is contained in the Oath do you
feel that your conscience is bound; is it by the mere fact that you
repeat the words therein contained, or is it by that which is contained
in the form of the Oath?--Those words, "I do swear that I will be
faithful and bear true allegiance to her Majesty Queen Victoria, her
heirs and successors, according to law," are to me, binding in the most
full and complete and thorough degree on my conscience.
105. If you read a promise out of any book or paper, and said, "I promise
so to do," is there more binding effect in those words that you have read
than in the mere ordinary assertion of a promise?--Yes, because this
reading is by law, and by the decision of your Committee intended to be
the form in which I pledge my allegiance as a Member.
106. Then if it were a form sanctioned by law, as in the case of an
affirmation, is there any more effect upon your mind if you take it in
the form of what we call an oath than if you took it simply by words of
affirmation or promise?--If the form sanctioned by law ran "I affirm," or
"I declare and affirm," or "I solemnly and sincerely declare and affirm
that I will be faithful and bear true allegiance to her Majesty Queen
Victoria, her heirs and successors, according to law," that would be
equally binding upon my conscience.
107. Do you attach any express or particular meaning to the words "I
swear"?--The meaning that I attach to them is that they are a pledge upon
my conscience to the truth of the declaration which I am making.
108. But a pledge given, may I ask, to whom?--A pledge given to the
properly constituted authorities, whomsoever they may be, who are
entitled to receive it from me.
109. Do you attribute any more meaning to those words than a pledge to
human beings around you?--I attach no more meaning to those words than I
do to a pledge to human beings authorised by law to take such a pledge
from me under similar solemn circumstances.
110. But the solemn circumstances, I suppose, are the mere mundane
circumstances?--The statutory circumstances. I meant "solemn" simply in
the sense of being the statutory circumstances; I meant to distinguish
between that and mere conversation.
111. I think we understand from your answers that you do not attribute
any more weight to the use of the words "I swear," and to the words "So
help me God," than you would to an ordinary promise if it were given
under the same circumstances as those under which you gave that promise
in the House of Commons?--I conceive myself entitled by law to
distinguish, and I beg therefore to object to so much of the question as
deals with the words "So help me God," my objection being founded on the
case of Miller _v._ Salomons, in the 17th Jurist, and the case of the
Lancaster and Carlisle Railway Company _v._ Heaton in the 4th Jurist, new
series.
112. I presume by that answer you mean that "So help me, God" is no part
of the oath or promise, but merely the form in which it is taken?--That
is so; it is merely a form of asseveration.
113. Will you confine yourself, then, to the words "I swear"?--I will.
114. Do you attribute any greater weight or any meaning to the words "I
swear," and to the fact of kissing the book, beyond the words of ordinary
promise?--Not beyond the words of ordinary promise made under statutory
obligation.
115. Then what greater weight do you attach to a promise made under
statutory obligation than to an ordinary promise?--I would prefer not
making any promise that I did not intend to keep; but the law has
attached a weight to statutory promises, and a penalty and disgrace on
the breaking of them.
116. That is a consequence resulting from human action; you do not
attribute any other weight to such a promise beyond what results from
such penalties?--I object to that question.
117. I will now go to another point. How lately is it that you have
claimed a right to affirm in a court of law?--In a superior court or in
an inferior court?
118. In any court where you have taken an oath?--Recently in an inferior
court, within a few days.
119. How lately prior to your claim in the House of Commons?--Prior to my
claim in the House of Commons, about 12 months.
120. You had made a claim on several occasions, I suppose, prior to the
period which you have just mentioned?--Yes.
121. What steps, if any, were taken by the judge on such occasions to
arrive at the conclusion that the oath would have no binding effect:--On
the last occasion, by Mr. Justice Lindley, none. I presume he thought my
claim to affirm well founded, and he simply bowed his head, and the clerk
administered the affirmation after looking to him.
122. I suppose you made a claim to affirm?--When the clerk brought the
Testament to the witness-box I said, "I desire to affirm," and the clerk
looked at Mr. Justice Lindley, who just bowed his head (he happened to be
the presiding judge), and I did affirm.
123. Had you reason to think that Mr. Justice Lindley was acquainted with
any previous applications by you to affirm?--I should think it possible,
because the claim to affirm has been the subject of considerable
litigation by myself in the courts.
124. Upon any occasion upon which the judge did make inquiry, what was
the nature of the inquiry?--The present Lord Justice Brett, whom I
remember distinctly challenging me upon it when he was Mr. Justice Brett,
said: "Why do you claim, Mr. Bradlaugh?" and I perfectly remember my
answer, but I am just thinking whether I am not entitled to say this:
that happened seven years ago; I do not intend to imply that there is any
change or anything since, but I think I am entitled to say to this
Committee that it is hardly within the limits of their reference to
inquire into something that happened in a law court between myself and a
judge seven years ago.
125. I should not have asked the question, but you have stated in the
House of Commons yourself, in order to support your claim to make
affirmation, that you have frequently been permitted to affirm?--That is
so.
126. And I think you gave the last nine or ten years?--Yes, and Mr.
Justice Brett's question came within that time. I hope you will not
consider that I am putting the objection unfairly. What I want to put is
this: that the conversation which took place on the occasion of my having
affirmed (and I repeat that I have affirmed before different judges)
being more or less informal, ought not to be the subject of inquiry by
this Committee. The fact is of record. Those were all at _Nisi Prius_.
127. It was before a judge who would have to administer an oath?--Quite
so.
128. If you state that you really entertain an objection to the question,
I do not wish to press it myself personally?--I have no objection to
answering, except that I have purposely tried to keep out of this
discussion any question of my views; otherwise I am quite in the hands of
the Committee, and if the Committee are disposed to press the question I
will give the answer, having made my objection.
129. I do not wish to go into the views generally entertained by you,
except so far as expressed by you that the Testimony Oath had no binding
effect upon your conscience?--My answer applied to the Assertory or
Testimony Oath.
130. I am asking you what you stated when a Testimony Oath was being
administered to you; but if you desire not to answer the question, so far
as I, an individual member of the Committee, am concerned, I do not wish
to put it to you?--I take the objection.
131. Mr. GIBSON: Can you recall whether within any time since your right
to affirm was first recognised in courts of justice, you have taken the
Oath?--Never; that is to say, the oath as a witness.
132. Have you ever taken any oath since your right to affirm was first
admitted in courts of justice?--It only has been my right to affirm as a
witness that has been admitted in a court of justice; I have under cover
of that Act, but I think illegally, affirmed as foreman of a special
jury, but I have considerable doubt whether the Act covered my
affirmation as a juryman.
133. With that knowledge now present to your mind, is it the fact that
the oath which you seek to take at the table of the House is, if you are
permitted to take it, the first oath that you will have taken since you
were permitted to affirm in courts of justice?--It is the first occasion
upon which there has been any reason for my taking or not taking the Oath
of Allegiance since I have been permitted to affirm.
134. Or any other form of oath?--My memory is not quite clear upon that;
I am not sure. There was a case in which I took evidence as a
Commissioner from America, and I am not at all sure whether the
completion of that Commission was before or after the passing of the
Affirmation Act.
135. But since the passing of the Act?--I cannot quite pledge my mind as
to that; but except in that case in which I was a Commissioner for
taking some evidence in relation to an American process, in which I may
have done so, I certainly have not.
136. Then am I to understand that you seek now to take this oath with
exactly the same meaning in your mind as you would take the
affirmation?--Which affirmation?
137. The affirmation which you originally sought to take at the table of
the House, the Promissory Affirmation?--I seek to take the Oath of
Allegiance just as I should seek to take the Affirmation of Allegiance.
138. And do you attach in your mind no different meaning to the word
"swear" than you would to the word "affirm?"--The law does not.
139. Do you, in your own mind, attach any difference to the sanction?--I
object that the question put to me asks me to make a distinguishment
which the law does not make.
140. I do not wish to press anything to which you object; do you desire
to tell the Committee that, in your own mind, there is no distinction
drawn when you use the word "affirm" and when you use the word
"swear"?--To me, on the Statute they have the same meaning; that is, they
are a pledge that what I put after those words is binding upon me in the
most complete degree.
141. I suppose you are aware of all the ordinary definitions of an oath
contained in the law books?--I am afraid that would be saying more than I
have any right to say. I am fairly well read, but not sufficiently to say
that I know them all.
142. You know a great many of them, I suppose?--I have learnt a few.
143. You said to my honorable and learned friend, the Attorney General,
that you regarded the word "swear" as a pledge given to a properly
constituted authority, and that that was the meaning you attached to the
word "swear"; what do you mean by the "properly constituted authority"
that you referred to in that answer?--Whatever may be the authority
established by Statute for the purpose of taking such an oath.
144. A human authority?--All authorities established by Statute for the
taking of oaths are human authorities Any authority outside a Statute is
illegal, and any person administering such an oath is indictable.
145. You are aware of the meaning of the expression "sanction of an
oath"; what do you consider would be the sanction of the Oath if you took
it?--I am not sure that I apprehend the meaning that is in your mind when
you use the words "sanction of an oath."
146. I will read the definition which is contained in Mr. Baron Martin's
judgment in the case of Miller _v._ Salomon's, where it refers to the
case of Omichund _v._ Barker, as reported in the "Law Journal": "The
doctrine laid down by the Lord Chancellor (Hardwicke) (Omichund _v._
Barker), and all the other judges, was that the essence of an oath was an
appeal to a Supreme Being in whose existence the person taking the oath
believed, and whom he also believed to be a rewarder of truth and an
avenger of falsehood, and that the form of taking an oath was a mere
outward act, and not essential to the oath which might be administered to
all persons according to their own peculiar religious opinions, and in
such manner as most affected their consciences." You have listened to
that statement?--Yes; and I have also read the judgment of the Court of
Error in the following year, in which they say that the essential words
of the oath are those without the appeal, and that the words "So help me,
God" are words of asseveration, the manner of taking the oath; but the
words preceding them are, it appears to me, an essential part of the
oath; and in the case of the Lancaster and Carlisle Railway Company _v._
Heaton, it was held that the oath was completely taken without the
addition of that appeal.
147. I am not at all upon the words "So help me, God," which are the
words referred to in the last case to which you referred. I am now upon
what contains a promise that an oath is being taken when a man uses the
word "swear"; do you object to the definition which I have read?--I
object to that definition as overruled by the Court of Error in its final
decision in error, confirmed by a subsequent decision of Lord Campbell in
the Lancaster and Carlisle Railway Company _v._ Heaton, when it was held
that the appeal was not a part of the oath.
148. CHAIRMAN: In both those cases I think the judges in holding that
view had reference simply to the words "So help me, God"?--Simply to the
words "So help me, God."
149. I think we are a little misunderstanding each other?--I hope not; I
want to be candid with the Committee.
150. Mr. GIBSON: I am not at all on the words which that case went on of
"So help me, God," but I am on what must be the essential distinction
between an oath and an affirmation; what, I ask you now, do you conceive to
be the essential distinction between an oath and an affirmation?--Following
the judgment of the Court of Error, repeated in the other judgment which I
quoted, I regard the essential words of the oath as beginning with "I
swear," and ending with "according to law." I submit that it is no part of
my duty to draw any distinction, if distinction exists, between the value
of that and the value of an affirmation, because the Statute has declared
that they both have the same value.
151. Do you consider that the taking of an oath implies in the person
taking it the existence of a belief in God, and that he will reward and
punish us according to our deserts?--That depends upon the form of the
oath; and since the decision you quoted very many forms of oath have been
entirely changed by the Legislature.
152. Do you consider that if you use the word "swear," you appeal to a
God?--I consider that I take an oath which is binding upon my honor and
conscience.
153. Without any reference to God?--I consider that I take an oath which
is binding upon my honor and conscience.
154. And supposing that you break that oath, what what would be the
consequences which you consider would result to you?--I am not aware that
the Statute has provided that I shall declare my opinion upon those
consequences.
155. Am I to understand that you decline to answer?--I am objecting that
the question is one which would not be put in a court of law, and
therefore, much more, should not be put here.
156. In answer to the Attorney General, and in your statement also, you
used the words "essential part of the Oath," and the words of the Oath
are, "I do swear that I will be faithful and bear true allegiance to Her
Majesty Queen Victoria, her heirs and successors, according to law;" do
you consider that all the words there present to your mind are equally
definite and clear meaning?--I consider that the whole of those words are
essential; I hold them to be essential, and I submit myself to the
construction which the Court has put upon them.
157. Is there any word in the Oath in the Statute which does not convey
to your mind any clear and definite meaning?--There is no word in that
which does not convey to me a clear and definite meaning.
158. And do you regard the words at the end of it, "So help me, God," as
conveying any definite meaning, or merely as a useless addendum to the
promise?--I object that this Committee will not ask me my opinion upon
those words, because they have been held by the highest court of law in
this realm, subject to appeal, to be no necessary part of the Oath.
159. Sir HENRY JACKSON: If your counsel were here I should put to him
this question, which do not answer if you object; I will treat you as if
you were your own counsel; I understand your view to be that the Act of
1866 or the Act of 1868, gives you two alternative methods of taking your
seat, the one of affirmation and the other of oath, and that it is open
to you to take whichever of the two you prefer; you prefer the
affirmation, but it having been decided not to be competent for you to
make the affirmation, you now propose to take the Oath?--That is exactly
my construction.
160. Now I will tell you my doubt, and perhaps you will be good enough to
tell me what you say upon it. It occurs to me that these two alternatives
are what lawyers call true alternatives; that is to say, that each
excludes the other, and that the Committee having decided (perhaps you
will say erroneously) that you cannot affirm, you have by your claim to
affirm excluded yourself from the alternative claim to take the Oath; are
not the two mutually exclusive?--No; the House of Commons decided that,
fortunately for me, and that saves me the trouble of thinking on it for
myself. When John Archdale applied to affirm, the House held that he
could not affirm, and they ordered him to take the Oath.
161. Was that under the Statute which regulates the present
procedure?--No, but it was under the claim of a man who thought that he
had alternative courses, and who refused to take the Oath.
162. That is the answer which you give to my doubt?--I am not sure
whether I have answered fully.
163. You do not condescend to any argument upon the Statute, but you
think that the one alternative is not exclusive of the other?--I thought
then, and subject to the Report of the Committee against me, which I
presume binds me, I should still think that I have the right to affirm,
and if there were any way in which I thought I could legally raise the
question, I should try to do so.
164. But on the hypothesis that the decision of the Committee was right,
have you anything except the Archdale precedent, from which you would
argue that these two Acts of Parliament do not create two mutually
exclusive alternatives?--I should simply reply that if that be so, and
you told me that I did not come within the one, I must come within the
other.
165. Mr. STAVELEY HILL: I wish to ask you one question with reference to
what took place before Lord Justice Brett (then Mr. Justice Brett), and,
of course, if you think proper, you will take the objection as you did to
what the Attorney General asked you: when Mr. Justice Brett admitted you
to affirm, what steps did he take with a view to satisfy himself that an
oath would not be binding upon your conscience?--He put to me the
question, "Why?" and I gave to him three words as an answer, and these
three words apparently satisfied him, and he directed the clerk to allow
me to affirm. He put no question to me as to whether the oath was binding
upon me or not.
166. Have you any objection to tell the Committee what those three words
were?--The question put by Mr. Justice Brett was, "Why?" I object to tell
the answer, because it would be an inquiry into a man's religious
opinions, and Sir George Grey, in introducing the Parliamentary Oaths Act
in 1866, under which I claim, said, "We will make no inquiry into any
man's religious opinions; let the constituencies be the judges of that."
167. But those three words, whatever they were, satisfied Mr. Justice
Brett that an oath would not be binding upon your conscience?--I cannot
say that, but they satisfied him sufficiently that he gave the clerk
directions to allow me to affirm.
168. When did that take place?--About eight years ago, speaking roughly;
it may be six or seven years, but I am not certain about the time.
169. Was it reported in the newspapers, and is it generally known?--I am
not sure; there have been cases reported.
170. Mr. PEMBERTON: I wish to ask whether, since you were returned as a
Member of this House, and since the Report of the last Committee, you
authorised the publication of a letter which appeared in the newspapers
of the 21st of May in reference to the proceedings which have taken place
on this matter?--I ask that the question may not be put to me, because I
say that the House has already decided that they will not put any inquiry
to a member as to what happens outside the House to determine what was
consistent with the Oath, or not.
171. Of course I do not press the question more than to remind you that
it had reference to proceedings which have taken place in this House, and
in a Committee of this House?--Many things I have read (I do not know
whether they are accurate or inaccurate), speeches made by Members
referring to proceedings in this House, and to that Committee in relation
to this matter. To put it roughly, I should submit that this Committee
should not examine me as to extra-Parliamentary utterances in reply to
extra-Parliamentary utterances. For example, one honorable Member, Sir
Henry Drummond Wolff, made a speech at Chichester----
172. Lord HENRY LENNOX: Not at Chichester?--The papers said so; they may
be very likely wrong, only it shows still more, I submit, the force of
the objection that extra-Parliamentary publications in reply to
extra-Parliamentary utterances should not be the subject of questions
before this Committee.