The Committee deliberated.
87. Chairman: I think the Committee would like to understand from you the kind of objection that you are anticipating before you proceed with your argument; as I understood you, you took this kind of objection: “I wish to know whether the Committee are going into any proceedings external to the proceedings which took place in the House, or will entertain the consideration of those questions,” and that if they did so you would wish to be heard upon that point; I understood you also to say that beyond that general question as to any proceedings which may have taken place as part of the transaction in any other place than the House itself, you wish to know whether the Committee would take such matter into their consideration; am I right in supposing that to be the character of your objection? – Not quite. Practically my question is this: Will this Committee take any facts into consideration other than those of which I have heard evidence given, and those which have been stated by myself in the course of my argument? If so, I should like to know, because I understood the permission of the Committee to be that I should address them at the close of the case before their deliberations, and I should submit with all respect that the Committee would not take one matter of fact into their consideration to influence them in their deliberations which I had not the opportunity of addressing them upon. If they have finished, and if there are no facts except those which I have heard to be dealt with, it enables me to turn out and eliminate a portion of the argument which I have prepared.
The Committee deliberated.
88. Chairman: The Committee have considered the matter which you have submitted to them, and they request me to inform you that members of the Committee do propose, after your statement is concluded, to ask some questions of you; but I have to inform you, at the same time, that you will be invited, and are invited, to state any objections that you may entertain to any such questions when put, and that you shall have a full opportunity of addressing the Committee after they have heard your answers to the questions so put? – That will enable me to eliminate a portion of my argument. I wish to submit to the Committee one observation on the precedent of Daniel O’Connell, and that is that, as a matter of fact, the evidence of Sir Thomas Erskine May shows that he misapprehended that precedent. It was a refusal by Daniel O’Connell to take the Oaths by law required of a member at the date of his election. Between the date of his election and the date of his refusal the law had changed, but it had not changed (so the House interpreted the Statute, or so the Statute ran, I do not know which) at the date of his election. So that I submit that Daniel O’Connell’s case is a case of a Member refusing to take the Oath by law required; and I further submit that the Parliamentary Debates will show that the words which appear as being used by Mr. O’Connell on the 19th of May, sufficiently expressed his reason for refusing to take the Oath of Supremacy some days at least before the House asked him again to take it. Then I have only two other matters which I should wish to submit to the Committee. One is that I have, neither directly nor indirectly, obtruded upon the House, since I have been a Member, any of my utterances or publications upon any subject whatever; that there is no precedent, except in the case of John Wilkes, for any reference on the part of any opposing Member to such publications by any Member prior to the taking of his seat; and that the ultimate decision of the House in John Wilkes’s case is directly against the introduction by any Member hostile to me of any such matter as a reason for my not being allowed to take my seat. Finally, I most respectfully submit that I have grave matter of complaint that my privileges as a Member of the House of Commons have been seriously infringed, and that the rights of the electors, my constituents, have been ignored in the attacks made upon me without previous notice to me; attacks to which I had no opportunity of making a dignified reply; attacks which, if the newspaper reports be accurate, were in many instances based upon absolute misapprehension or misquotation of my publications, and in one instance at any rate, based upon the most extreme misrepresentation of my conduct. I thank the Committee for listening to me, and I regret if my want of knowledge of the forms of the House has involved my saying anything in a manner in which the Committee would prefer that I should not have said it.
89. That is all you wish to state at present? – That is all I wish to state at present upon the evidence as taken by the Committee. If fresh evidence should be taken, I should ask the permission of the Committee to have the right of addressing them upon that.
90. The Committee will now proceed to examine you. – Before any question is put to me, will you, Sir, tell me when is the proper time to object to any question which I may think I have the right to object to?
91. When the question is put, before answering it? —
Mr. Attorney General: You will understand that I am not in any sense cross-examining you, but merely to clear up what took place in the House.
I am entirely in the hands of the Committee.
92. We know from the Proceedings of the House that you did at the table of the House make a claim, in the first instance, to make affirmation instead of taking the oath? – Yes.
93. And we understand that you did so on the ground that you were a person entitled to make affirmation within the terms of the Evidence Amendment Acts of 1869 and 1870? – That was then my impression of the law, and that was the claim which I made.
94. And I presume, of course, that at the time when you made that claim you founded it upon the belief that you were entitled to make affirmation in the House of Commons? – I made that claim solely upon my belief that the law entitled me to make it.
95. Then as regards your power to give evidence under the Evidence Amendment Acts in courts both civil and criminal, you of course put it before the House of Commons, as a fact, that you were a person entitled in those courts to make affirmation? – Yes.
96. And I presume that you were acquainted with the terms of those Acts, the subject interesting you? – Quite.
97. Were you aware that if you yourself were called as a witness, it would be necessary before you were allowed to make affirmation in a court, either civil or criminal, under the Acts of 1869 and 1870, that two things should be established; first, that you yourself objected to take the oath, or that your right to take it was objected to by some one else; and then, secondly, that the judge would be required to satisfy himself that the taking of an oath by you would have no binding effect upon your conscience? – No, that is not my interpretation of the Statute, nor do I think it has always been (although I think it has sometimes been) the interpretation of the judge or other presiding officer dealing with it.
98. Would you kindly explain your own view as to the sense in which you 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.