COURT OF EXCHEQUER,
April 19, 1852.

MILLER V. SALOMONS.

Admission of Jews to Parliament.

THE question of the admission of the Jews to Parliament has for some years formed a very prominent subject of discussion in the Legislature. The repeal of the penal and disabling statutes, and especially of the Corporation and Test Acts, had long removed the disabilities attached to the various classes of Protestant dissenters; and the Catholic Emancipation Act of 1829, which placed the Roman Catholics on a footing of perfect equality (save one or two excepted offices) with the rest of their Christian fellow-citizens, left the Jewish members of the community the only subjects of Her Majesty inhabiting these kingdoms under any civil disqualification arising from their religious opinions; and their admissibility to seats in the Legislature has been warmly advocated by many eminent statesmen as the complement of those great measures of civil and religious liberty commenced with the Revolution of 1688, and has been as warmly opposed by others on countervailing reasons. The question of the Jewish Disabilities, under the form of the Oath of Abjuration, was a principal subject of debate in the session of 1851. (See ANNUAL VOL. XCIV.

REGISTER, HISTORY, p. 162.) Although the measure then introduced was adopted by the House of Commons, it was rejected by the Lords; but notwithstanding that decision, Mr. Salomons, a member of the Jewish communion, and recently elected for Greenwich, presented himself at the table of the House of Commons to be sworn, and took the prescribed oaths, omitting from the oath of abjuration the words "on the true faith of a Christian ;" and although the House adopted a resolution that he could not sit in the House "until he had taken the oath of abjuration in the form required by law," he did sit, speak, and vote on more than one occasion.

It was the opinion of many, that Mr. Salomons in taking the oath with the omission of these words, had done all that was required by law; and it was to have a decision by the proper legal authorities upon this point that the present action was brought. It assumed the form of an action for the penalty of 500l., imposed by 1st George I. sess. 2, chap. 13, and 6th George III. chap. 53, on any member who should vote without having taken the oath of abjuration contained in the latter statute.

The case was most elaborately argued before the Court of Exchequer by Mr. Serjeant Channell for the plaintiff, and by Sir Fitzroy Kelly for the defendant, the Chief Baron (Sir Frederick Pollock), and Barons Parke, Alderson, and B B

Martin being the judges sitting in banco. In so important a case the Court took ample time to deliberate; and as Baron Martin dissented from the opinion of his brethren, the learned barons delivered their judgments severally. The following is a condensation of those of Baron Martin and of the Chief Baron, which latter expounded the same views as those of Barons Parke and Alderson.

Mr. Baron Martin having stated the preliminary facts, proceeded to deliver his judgment.

The case was argued before us last Hilary Term, and it was contended, on behalf of the plaintiff, that the oath was a Christian oath, and could only be made by a Christian; that it could not be lawfully taken without repeating the words "upon the true faith of a Christian," which, as it was argued, were a necessary and essential part of the oath. Four points were made on behalf of the defendant:-First, that the oath was not now obligatory to be taken at all; that the obligation expired on the death of King George III., or at all events upon the death of George IV.; and that there was no lawful authority to substitute the name of the reigning Sovereign. I think this point not tenable, and that the name of King George is introduced into the form of oath in its corporate character, and represents all his successors. Secondly, that the words " upon the true faith of a Christian" were repealed by the statute 10th George III. chap. 4, to which I shall have occasion hereafter to refer. I also think this point not tenable. Thirdly, that by the true construction of the statutes an obligation is imposed upon all Her Majesty's

English subjects, whether Christian or Jew, to take an oath binding upon their consciences, pledging them to the several matters contained in the oath prescribed by the statute 6th George III. chap. 53. That the words "upon the true faith of a Christian" were not intended by the Legislature as a religious test at all, but were inserted for an entirely different object and purpose; and that when the person taking the oath is not a Christian, he not merely may but ought to omit these words, and take the oath in the form binding upon his conscience; and that the oath so taken is made in a lawful manner, and relieves the taker from all penalties which are consequent upon the refusal or neglect to take the oath. This is the substantial question in the case. Fourthly, it was argued that the words “ upon the true faith of a Christian" may be omitted by virtue of the statute 1st and 2nd Vict. chap. 105. In the argument both the learned counsel concurred that in the case of Omichund v. Barker" (1st Atkins, p. 21), the true nature of an oath, and the law of England in regard to it, were rightly laid down and established; and both also expressed their concurrence in the doctrine of Lord Coke in the second "Institute," pages 479 and 718, viz. that a new oath cannot be imposed, nor an existing oath altered, except by authority of Parliament. The case of" Omichund v. Barker" was decided by Lord Chancellor Hardwicke, assisted by the two Chief Justices and the Chief Baron, and has always been considered of great authority. The doctrine laid down by the Lord Chancellor 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 ought to be administered to all persons according to their own peculiar religious opinion, and in such manner as most affected their consciences. The present oath of abjuration itself is contained in the statute 6th George III. chap. 53, sect. 1; but in order to ascertain its true construction, it must be considered together and in connection with the statute 1st George I. stat. 2, chap. 13. This latter statute was made upon the accession of the House of Hanover, and contains the three oaths, viz. of allegiance, supremacy, and abjuration. It was submitted by the learned counsel for the plaintiff in his very able argument, that in order to arrive at the true construction of these Acts of Parliament it was necessary to go back to the old statutes which originally imposed parliamentary oaths, and attentively consider their provisions and requirements, and he referred us to the statute 1st Elizabeth, chap. 1, as the first statute bearing upon the subject. That was entitled an Act to restore to the Crown the ancient Jurisdiction over the Estate, Ecclesiastical and Spiritual, and for abolishing all Foreign Powers repugnant to the same." The Act begins by reciting the statutes of King Henry VIII. for the extinguishment of all foreign powers and authorities, and the repeal of these statutes by an Act in the reign of Queen Mary, and proceeds to repeal the latter Act, and re

enact the former. This Act of Queen Elizabeth is obviously directed against the Pope and See of Rome, and has no relation whatever to Jews, who were then banished the kingdom. By the 19th section, all ecclesiastical persons, and all judges, justices, mayors, and other public officers, were required to make an oath upon the Evangelists, of the Queen's supremacy. The words, "upon the true faith of a Christian" were not contained in this oath. It concluded with the words, "So help me God, and the contents of this book." This statute did not extend to Members of the House of Commons, but by the 5th Elizabeth, chap. 1, sect. 16, it was extended to them, and they were required to take the oath of supremacy before the Lord Steward. It is also obvious that this statute was solely directed against the Pope and the See of Rome, and every section of it is directed to the single object of the protection of the Queen and State against the Pope and persons of the Roman Catholic religion. The next statute to which we were referred by the learned counsel for the plaintiff was the 3rd James I. chap. 4, and it was stated by him to contain the germ of the oath of abjuration. I concur with him in thinking that this statute has an important bearing upon the present question. The words, " upon the true faith of a Christian" first occur in it, and if the object and intention of the Legislature in inserting them was to create a test of Christianity, they then would be of the essence of the oath therein contained; but if they were inserted for an entirely different purpose and object, and were not intended as a test of Christianity at all, but as a test

66

of and security for loyalty and obedience, they would then seem to be not of that essential nature. The Act is entitled, "An Act for the better discovering and repressing of Popish Recusants." It was passed immediately after the Popish plot, and begins by reciting the dangers that were to be apprehended from those who adhere to the Popish religion; and then proceeds to make enactments directed against Popish recusants, and by the 13th section enacts, that for the better trial how His Majesty's subjects stand affected in point of their loyalty and due obedience, it should be lawful for the bishop in his diocese, or any two justices of the peace, to call upon a great number of persons therein described, to take an oath upon the Holy Evangelists; "the tenor of which oath," the statute says, "hereinafter followeth ;"and the commencement and conclusion of the form given are in the very words of the present abjuration oath :-" And I do make this recognition and acknowledgment heartily, willingly, and truly, upon the true faith of a Christian: So help me God." It is apparent from this, as well as many other Acts of Parliament, that an idea then, and long afterwards, prevailed that Roman Catholics were in a different condition with regard to oaths from persons of other religious denominations, and that the Jesuits taught that the Pope had power to grant absolution from oaths, and to dispense with the performance of and adherence to them, and that the Roman Catholics themselves made these parliamentary oaths with mental evasions and secret reservations, which were supposed to have the effect of nullifying their obligation; and

the conclusion of the oath is expressly directed against this supposed state of things. Now, Jews were not then resident in the kingdom, so that it is clear that the words "upon the true faith of a Christian were not inserted with any hostile objects towards them; and the statute expressly declares that the oath was imposed "for the better trial of the loyalty and obedience of His Majesty's subjects;" and it is perfectly obvious to my mind that the words were introduced into the oath, not as a test of Christianity, but in order the more effectually to bind and affect the conscience of Roman Catholics, and for no other purpose. The Jews were never thought of, and, indeed, the Legislature, in all probability, never contemplated that there were any subjects of the kingdom who were not Christians. Members of Parliament were not included in this statute, but by statute 7th James I. chap. 6, they, and a great variety of other persons, were required to take the same oath. The next statute mentioned by the learned counsel for the plaintiff was the 30th Charles II., statute 2, by which it was enacted that no person should vote in the House of Commons until he took the oaths of allegiance and supremacy, and made the declaration against transubstantiation therein contained. It was by means of this declaration that Roman Catholics were so long excluded from Parliament, and it continued to be required to be made until the Roman Catholic Relief Act in 1829. Now, this was an Act of Parliament creating a direct religious test, and that the Legislature well understood how to create religious tests is evident, as well from it as from the Corporation and the Test