The Express.
London, England, 1852-04-20 00:00:00

JEWISH DISABILITIES.

JI:DG3IENT AGAINST MIL SALOMoNs.

COURT OF EXCHEQUER.—Yzararay.
Swims us Basco.—Beresa ves loam Cam 11*m.. Ma
Low Paw. Ka. Uses Maws, ass Sh. Bum Ma'am

MILLS& O. SALOMUMS, FAG, 111.P.—Jruumssr.

la yesterday's Express were given illanillete of the
judgements of the different learned barons in thiacese; that
of the Lord Chief Huron is now given In extesso
1 he Lord Chief Ilaron—The facts of this ewe, and the
eireanedanees under which it comes before the court for
judgment, bare already been so tully and distinctly stated,
that 1 may at once pass to the real question for our decision,
I entirely agree with the rest of the court as to three of
the point. made. I think that one only of the four points
raised by the defentlunCs counsel calls for an elaborate
pair:scut, end that is, whither the defendant by repeating
the words of the oath of abjuration (omitting the expel's.
Woo, •• Oct the true faith of a ('hristian"). and giving the
words as repeated the sanction of an oath, binding upon
his wameienee, has complied with tile statute Gth George
111., chip. :4, see. 1. and is, therefore, not Nab', to
the penalties of Ist George IV., chap. 13, see.
17. The nth George 111. requires the set to be
admiuistsreel in such manner and form" as Is
therein ,f,er set down and prescribed ((that is to say), then
comes the ferns of an otth, the concluding part of which is,
" upon the true faith of a Christian," and the section goes
on to enact: "'that all and every person who are enjoined
and trequired to administer, take, or subscribe the oath of
abjuration, shall respectively administer, take, and sub-
scribe the oath of abjuration, according to the form herein
set dowi, and prescribed, Ike., in such manner and with due
ohservan..e of the acme requisites, and with benefit of the
same INISIDIM, I.TOVIWCI, and irrilounities, so by any act
now solvating are enacted and subject to the same
penalties." Now, by the 16th section of the Ist Geo. 1.,
no member of the House of Commons shall vote in the

nous* of Commons until he shall take thr oath of ab-

juration in Cie r directed. and the penalty of the TM-
labels of that sectiou is .100/., and this action u brought to
recover that sum, and gives rise to the question I have
already stated. It cannot (I think) be denied, apart from
any grounds presented with a view to lead to a different con-
structron, that !ht.-plain soil obvious mewing of the sta-
tute is that the oath shall be administered and taken accord.
ing to the very form set down and prescribed in the act ;
but it is said- that clear and sulatantial grounds for a
different condruction may be found in the reasons for the
decision at:opted by my brother Martin:—First, it is said
"Oiniehund and Limiter " establishes that an oath is to be
administered to a '4 itn,a according to the rites of his reli-
gion, sou to be binding on his conscience, and if it be so
that is sulliiient. Than it is said th. defendant has taken
the substance of the oath in a manner which is legal, being
that which is binding on his conscience; and as the object
of the statute wait not to introsluee a religious test, but to
ascertain the loyalty of the party called upon to take the
oath, and 11111 anybody may be called upon to take it, and
therefore Jews may be so called upon, and us it would be
highly unjust, and dim fore very absurd to require Jews to
take the oath in this form. subject (on refusal) to the very
penal constquences contained in the set, the act cannot be
so construed—hot may be construed so as to, give an upper-
tuaity to them, iu common with her Majesty's subjects, to
take the oath in a form in which (according to their reli-
gious helieli) they can take it. With respect to the ease of
.• (Mitchum and Bark. r," it appears to me to have decided
merely this—that the common law of England agrees with
the law of nations, that " the form of an oath is to be sc.
ootamodateal to the religious persuasion which the swearer
entertains." Thyme are the very words of Puffendorf,
Book 4. chap. 2, see. 4. In fact, a judicial oath (for justice
is of all countries and clinics) is governed by the law of
nations ; but an oath of office or qualification is governed
by the municipal laws of the state which requires it to be
taken, and by those laws alone. But it is said that
it is competent to us sitting here so to construe the
statute as to give to the defendant the relief which
he requires—nay, that it is our duty so to construe
it, inasmuch as the opposite construction would lead to an
injustice amounting to an absurdity. The general argument
involved in this course of reasoning is certainly Tint without
some appearance of authority. In some cases, ro doubt,
limited words in a statute have been said to be extended.
The most remarkable instance of this is the act commonly
called " dr ercumspeet.• agatis" (the 13th Edward I.), in
which no hbthop is named hut the Bishop of Norwich. Lord
Coke, however, in the '2nd Instit., commenting on this, says
"The Hi hop of Nur-wick is here put but for example, but
it eau:flied to all the bishops within this realm." The only
remark I would make on this is, that if this turns on the
mere construction of this statute, I do not believe such a
construction of a statute would be tolerated in modern
times. There arc other examples, more modern, whero
what is called a remedial law has b:en extended by what
is called " necessary implication" or " reasonable intend-
ment." Ou the other baud, the verbal effect of some clauses
in act* of parliament has been retained. Instruments
requiring stamp. have been received in evidence for collateral
purposes, though it be enacted they should not be received in
evidence, and other instruments declared to be void to all
intents and purposes have been held to be void only so far
as is necemary to accomplish the object of the legislature.
But, notwithstanding these and other instances that might
be put, I very much doubt the imundoess of the supposed
roles of cermet', tion laid down when applied to the acts of
the legislature. I admit that, with respect to the written
contracts of parties and the wills of testators, we must en-
deavour to construe them as well as we can ; and, if one
construction leads to manifest absurdity and a different con-
struction leads to a seasible result, we are at liberty to re-
ject the construction which leads to the absurdity ; bat,
then, it must be a "construction," not a substitution of
something else, either by omitting what is there or intro-
ducing someth:ng that is not there; nor can we reject a will,
however uujust we may think it; the absurdity must be
something opposed to right reason and not merely to oar
notions of policy and justice. But I do not think we are at
liberty to use the same freedom with the statutes of the
realm. The language of a will must speak for itself, as-
sisted by all external circumstances. If the meaning of the
language used by the legislature be plain and clear, we
have nothing to do but to obey it, and I think to takel a
different coarse is to abandon the office of judge and to
assume the province of legislation. But is it at all doubt-
ful what the legislature intended to enact when those sta-
tutes pasted I quit. agree with my brother Martin that
the statute of 6th George 111. must be considered in con-
nexion with the statute Ist George I.; but I go further
—i think it ought to be considered in connexion with
all the statutes inpari nuiterik —and, making that amp
parison, let us see whether any doubt can exist as to
That was the real intention or the legislature in making
• the enactment under tonsideratica, and whether it was not
intended to require the oath to be taken in the very form
of words set down, whatever might be the consequence of
thew words forming part of the cash. The earliest statute
to which 1 thiak attentive should be drawn Is the Ist of
Elizabeth, chap. 1, entitled "An set to ratan the eating
jurisdiction of the crown in matters emlimieltioal." By
section 19 of that set all public at and gab& ear-
rants are to take a oath acesrdial to the term and What
following, as is there stated; sad by the 6th Bintlisils,
chap. 1, Ise. 6, all such penes' ran destined led set
forth io that meta= are to take sad proseuses a
oath upon the Evenediste, neordiai to the Isser=
and form of the same oath verbatim ; and by moths 16 it
is enacted that every knight, intim, and bwjese of the
parliament shall take the mid oath. By the elsenle 3 James
1., clap 4, see. 15 the ea oath ° the
tenste/ width banisher Itter."l"chibeest nth weshises
the sash ed supremacy end with
Cllr wemie-0 All tisane thlantiral 111.111111t1 maw
eerttb aelseeriedge and swear, te the =pram
Wine spikes, without equicaeadea or mental eva-
des sr secret neurotics whatsoever, upon the he Isidi of
a ebrisiaa." Here, I believe, kir the Int doe (as hr as
1 us aware) is found the szpredies—" Upon the didi of a
Cbdsdea "—sato which oath Mohan the perms se tidos
It AM enbeeribe his et her name or mark. y
the east of this seems wee Y eteeinde Jews ran any
boast that Wild offal frees aides the inch, for they ear-
seislyeauld set tabe each Isig to the tease (width
is therms thing as outiatha), nor seheeribe it se se Sim;
ash 1 Wok as we as desk that if it had lees piloted
was Se the bs dness. of Set tiathil the Abet was Is
wish& all Est Christiana hue the ealls.u=
biteemgried Unclench was their The sesehil
altsessloseles loth@ sawn ef loose I. sot Wart et
Msty with mod tetheesdi aldenties, pessesdedissey
that theid Valet
iiidtat.dass.shawth adapted the oath
be the yaw Ilea of and the rtb Aaasi, e. 7, " tor
waft the sessewles. aorta the oath to he token
dist the denim of laws Anse, without Seas, and that
was to be lasses" the due alth of a Cheistlea." The
node of Wades eweiteed the arm The 6th of dose, e.
14, sehdel to diethad, sad *ell* Anne, e. 16, =ekes ro-
okies es Si taklN the oaths there mentioned, ° in Use
weeds hievolsg. Having takes this review ef the arts
whit& see la pesiniateds peke 69 the let diseese La!
sik whether it eaeseeemably bed deSed
Isghlosise Os sway) the emusisse—.slim. Oa Ise
SIM 11=1 " him" (ire sesabed *an •
dla WM) wid " omegasthe Awn
=3O set dew end reetwilead." whist' seem in the
MOM In quads* meant whet the weeds fn All
thew eatyreselene
as
New the sem vie.,
that the very wade ast tiests were be be ; esd
are we at liberty Is melt er odd saythlig es agesist of
oar aotioa ef who la Jut er mind ? Asa aue ma te alter
the oath so ae M assemesade It to dr amino of &Jew.
when it is satirises &et it wee the mewed ekes* of the
legislation is mink ewes Olidelireer mho they Me a
ems mambo ilmseelearies 1' And if this satorsd ses.
swamies emse le pet en the atatoiss of Etleabellt. of
Jams I.olllllllia 111., sad Anse (as I think it asset),
by what peewee of reasealag, nnh what eatharity ea
we put a diarist wastrodles ups the estates of
Osfide• I.
by the sad edamh jih lllitu.se l t
wen We ea se as* what is the
'WOW lam Omi sew, su
.3y the lith Owego 14 shop. Id (an est midi Ye hapbject.
pily
ospired), perms set 'Wag die oath woe obliged to re-
sister their names and real estates. The dde of the
act is important. It has been Fad that these
provisions were directed Spinet ill sely. That is
nut . so. The title is, "An het toolig• .I..cmss=
papists, in that part of Great Mimi*
and all persons in Great Britain refusing or noglimetag to
take the oaths appointed for the security of his 's
person and government by several sets heroin
to register their names and real estates." The stesstiou;
of the legislature was drawn to the hardstsrol:he ewe of
Ile Jews, occasioned by this last act, and area gins
by the statute 10 Usage 1., chap. 4, bat the redrew wee
limited to Um grimace ; &d it was esested that Jews
night. fee the puree of the eat AWN to, take the

abjuration oath, omitting the weeds, "On the tree hith
of • Christian." So, taking the oath Jews wen lice to be
required to register their names and real estates. There
nothing that makes the 17th section applicable to the
Ist George 1., and if that statute were now iu force it
wou:d not aotitls Jews to take the oaths omitting the
words, "On the true faith of a Christian," for the purpose
of sitting in parliament; but every other effect of not
taking the oath of abjuration is left untouched. Now, ac-
cording to the view of my Mother Martin, at that very
time, not only was it unnecessary to pass any act to
relieve the Jews in respect of the registration of their
IMMO, but for every purpose whatever ; it was competent.
not only for a Jew, a Turk, • Nimbi), a Pagan, tir any
other, if by accident he were born in the realm, end were
capable of taking any oath binding on his conscience, to
take the abjuration oath, omitting die words "on the true
faith of a Christian," and to be elected and take his seat as
• member of parliament, and to fill any of the teem already
alluded to, unless be were kept out by some other test.
With these acts before me, and with the legislative commen-
tary on them, which the last statutes of 13 Wargo 11., chap.
7, furnish, I think we are not as judges (living though we
do in • more enlightened and liberal age) to be liberal above
what is written, or by any method of construction when
the statutes distinctly, eapressly, end imperatively
require one form, to substitute another as equivalent fur
the object or purpose of the legislature, when every one
set minted with our history and the course of our legislation
must in candour acknowledge that in any part of the reign
of George 1., Ocome 11., or the early part of George 111., it
was the Nettled from the intention of the legislature to
admit into the House of COMMAS persons of the Jewish re-
ligion. The language used appears to me to be se altar, so
distinct, so express, and stringent as to exclude a relaxed
(and what may be called • lit ometruction by judges,
quite as much as it is intended to guard against a mental
reservation by those who think that the effect of an oath
can honestly be so etaded. Oa these grounds I agree with
my brothers hake and Alderson that our judgment ought
to lei for the plaintiff, and the judgment of the court is,
therefore, for the plaintiff.
Judgment for the plaintiff accordingly.