The Pamphlet Collection of Sir Robert Stout: Volume 39
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 20 & 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.page 7
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, page 8 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 page 9 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. Brad- page 10 laugh'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.page 11
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.