The Sun.
London, England, 1852-01-29 00:00:00

TR/YR/MAY

EV

LAW INTELLIGENCE.
COURT OF EXCHEQUER, ✓an. 23.
(Sittings in Banco.)
SPECIAL PAPER.-MILLER V. SALOMONS.

Sir F. KELLY resumed his argument in this case at
tho sitting of the C Art. The second proposition, he
said, which he had to submit to their Lordships was,
that under the Act of 6 George 111., cap. 53, upon
which this action was founded, the oath of abjuration
might be taken by a Jew with the omission of the words
"on the true faith of a Christian." This depended,
however, upon whether the provisions of the 10th
George I. continued and remained in force at the time
the Act of 6th Georgh 111. was passed. The Learned
Sergeant (Channell) seemed to suppose that the Act 10th
George 1., cap. 4, had expired; but he (Sir F. Kelly)
would be able to show, that by a series of Acts to the
6th George 111., which imposed the oath now required
to be taken, the Act of 10th George I. had been kept in
force. The 6th George 111. enacted, that from and after
the 4th of June, 1766, the oath of abjuration prescribed
in the 10th George I. should be taken and subscribed
within a limited time, but with benefit of the same
savings, provisoes, and indemnities contained in any
Acts then subisting. The question was then, whether
the Act 10th George 1., which allowed the omission from
the oath of abjuration when it was taken by a Jew of
the words "on the true faith of a Christian," had
ceased and expired, or whether it had been continued,
and was in force at the time of passing the 6th of George
111., c. 53. (The Lord Chief Baron here inquired for
a printed copy of the Act 10th George 1., c. 4, which
had been referred to on Monday, and being informed by
Sir F. Kelly that no copies could be obtained at the
Queen's printer's, although there was a copy in the
lierary of the Inner Temple, his Lordship observed that
ho thought it would be well if some Member of the Le-
gislature would suggest that, along with the numerous
blue-books and papers published during every session of
Parliament, some of the old public statutes should oc-
casionally be reprinted, for such statutes ought to be
accessible to all her Majesty's subjects.] The oath of
abjuration (Sir F. Kelly continued), which, in its pre-
sent form, was introduced by the Ist of George L, 0. 13,
was repeated in the 9th of George 1., c. 24, which ex-
tended the time allowed for taking the oath. A further
extension was afforded by the 10th of George L, c. 4,
the 17th section of which allowed the oath of abjuration
to be taken by Jews, with the omission of the words
"on the true faith of a Christian." Now it had been
contended by his Learned Friend Mr. Bethell, in the
House of Commons, that this clause—
The CHIEF BARON—I doubt the propriety of any re-
ference to the opinion of any living barrister, however
eminent, delivered no matter where—whether in the
House of Commons or in a parish vestry. It amounts
merely to this, that a gentleman of dessrved eminence,
and of great reputation in the profession, has somewhere
or other said so and so. We are perfectly aware of Mr.
Bethell's opinion.
Baron ALDERSON—And of the opposite opinions ex-
pressed by other gentlemen.—(A laugh.)
Sir F. KELLY said, if he had committed an error in
referring to opinions expressed in the House of Com-
mons, he had been led into it by what fell from the
Bench the other day as to the views of eminent Members
of that assembly. He submitted that the provisions of
the 10th George I. amounted to a legislative declaration
that the words " on the true faith of a Christian" were
no necessary or essential part of the oath of abjuration.
The oath of abjuration sonsisted of many parts, as a de-
claration of allegiance and obedience to the reigning
Sovereign, an abjuration of the right and title o the
Pretender and his family, &c., but it did not contain as
any part of the thing sworn to the fact or statement that
the party :.swearing was a Christian, nor was it the
meaning and intent of the Legislature to impose that
oath, or any part of it, upon any person as a teat
of Christianity. If the oath had been intended
as a test of Christianity, it was impossible
that the Legislature should have authorized its
administration to a Jew. There was a series of Acts
after the 10th George 1., from the 2d George 11, c. 31,
to the 6th George 111., c. 7, enlarging the time allowed
for taking the oath of abjuration, which was, by the
last-named Act, extended to the 24th ,of November,
1766, se that the time thus allowed was carried beyond
the passing of the 6th George 111., c. 53. He submitted,
therefore, that the 10th George I. having sanctioned the
omission of the words "on the true faith of a Christian,"
when the oath of abjuration was taken 'by members of
the Jewish religion, and all the succeeding Acts re-
ferring to the same identical oath, the effect of these Acts
was, that from the time of the 10th George I. the oath
of abjuration, as taken by the members of the Jewish
religion, would be taken with that omission. He main-
tained that whenever the law of this country imposed
upon any subject of the realm the duty of taking an oath,
the law not only permitted but required that that oath
should be taken in such manner and form as to bind the
conscience of the swearer. The oath of abjuration was
not one which might or might not be taken, according
to a person's pleasure or interests, but in many cases
it became a matter of necessity on the part
of members of the Jewish religion to take this
oath, and the question was whether the law which com-
pelled a Jew to take the oath compelled him to take it
in a way which would subject him to the guilt at once
of blasphemy and perjury. It appeared from the Ist
George 1., c. 13, and from the recital of the other Acts of
Parliament, that their sole object was to secure the per-
son and Government of the Sovereign, and the succes-
sion to the crown, and to extinguish the hopes of the
Pretender or his family, and that these Acts had no re-
ligious aspect or tendency whatever. It was in the first
instance provided that all persons holding public offices
should publicly take the oaths of allegiance, supremacy,
and abjuration, and afterwards it was enacted that these
oaths should be taken by all Members of the House of
Commons before they could sit and vote. It must be
borne in mind that though it was competent to any man
to accept or reject an office of profit, a person elected a
member of the House of Commons became a Member of
Parliament, with all the duties and liabilities, as well as
with all the privileges of the position, whether he would
or no. A person so elected could not reject the office;
he was a Member by the election, and was subject to the
jurisdiction of the House, even though he might have
been re turned against his own will.
The CRIEF BARON observed that a person did not be-
come a member of the House of Commons until he had
taken his seat.
Sir begged,i with great respect, to differ
from
He apprehended that, although a
hisF KELLYLo Lordship.
Member of Parliament was, by the express terms of the
statute, prevented from voting, till he had taken the
oaths, he was in every other respect whatsoever a Mem-
ber of Parliament before he had taken the oaths, whe-
ther with regard to duties, liabilities, or privileges, as
he was after be had taken the oaths. It was stated in
" Dwarris on Statutes," supported by reference to
" Hatsell," that, notwithstanding all the forms which
were introductory to a Member taking his seat in the
House of Commons, a person when returned—though he
might not have taken his seat—was to all ' intents a
Member, except as regarded the right of voting, and
was entitled to the privileges the same as every other
Member. He begged their Lordships' attention to the
10th and 11th sections of the Act Ist Geo. 1., c. 13. The
10 le section empowered two justices of the peace, or
any other persons specially
appointed by the Crown, to
administer and tender the oath of abjuration to any per
son or persons whom they might suspect to be dangerous
or disaffected to his Majesty, and if the person to whom!the
oath was so tendered should refuse to take it, such per-
son should be judged a Popish recusant convict, and
liable to the penalties of prremunire. So that not only
at the time when the Act was passed, but at the pre-
sent day any two justices of the peace, if they suspected
that any member of the Jewish religion was disaffected,
might call upon him to take the oath of abjuration, and
if ho refused to take it he became liable to the penalties
of prasmueire. The 11 th section of the Act was, how-
ever, still stronger. It provided that two or more jus-
tices of the peace might, without any cause at all, sum-
mon any person to appear before them to take the oaths
mentioned in the Act; and it such persons should not
appear before the justices, or at the quarter sessions,
they should be esteemed and adjudged Popish
recusants convict. The question their Lordships had
to determine, then, was, whether it was the inten-
tion of the Legislature, and whether it was
the true legal effect
and construction of the Acts
of Parliament, that this oath, when tendered to a mem-
ber of the Jewish religion, should be sworn in such man-
ner as might be conformable to and binding upon the
conscience of the swearer? If their Lordships held that
the oath must be taken by Jews with the words "on
the true faith of a Christian," either the Jew must take
the oath, using those words, and so commit blasphemy
and perjury at once, or he must refuse to take the oath,
and so be liable to all the penalties imposed upon
Popish recusants convict. It was absurd to suppose
that the Legislature, when imposing an oath of loyalty
and allegiance which persons of all classes were to be
compelled to take, could have intended to frame that
oath in such terms that ono class, at least, of the
community Would be unable to take it. Any one who
looked into the recitals or enactments of the various
Acts of Parliament from the Reformation to the pre-
sent time must be convinced that all the oaths and
tests which were imposed were directed solely and ex-
clusively against Papists, and that it was never the
intention of
the Legislature to affect the Jews at lien.
After analyzing
the oath of abjuration, and contending
that the words " on the true faith of a Christain,"
formed no part of the oath or thing sworn to, Sir F.
Kelly said, if it could be shown that the Legislature in-
tended to impose this oath as a test of Christianity, and
intended that the person swearing it should swear him-
self to be a Christian, he would admit that these were
words of substance, and ought not to be rejected.
The Cep BARON' observed that unless the words
" upon the true faith of a Christian" were the form of
oath, there was no form at all, for in the statute 6
George 111., the addition of the words,
God," did not occur.
Sir F. KELLY had just been about to mention that
fact. In the 6th George 111., which contained the oath
as it was now administered, and upon which exclusively
this action was founded, there was no form of swear-
ing at all, unless they took the words " upon the true
faith of a
Christian" to be the form of oath. If the
construction contended for on the other side were the
true construction, the Acts of 1 George I. and 6 George
111. amounted to this—that the Legislature were de-
termined to make all thu King's Jewish subjects swear
they were Christians, or suffer the penalties of _ a
prweiunire. Sir F. Kelly, having referred to the works
of Bishop Sanderson and Puffondorff for definitions of
the distinction between the thing sworn to and the mere
asseveration or words of swearing, proceeded to argue
that the Legislature of this country, in exacting these
oaths from Jews as well as Christians, must have intended
that the form of swearing should be such as would bind
the conscience of a Jew. He contended that the prin-
ciple he was now maintaining had been established in
the ease of e Omichund v. Barker —namely, that when
the law permits or requires an oath to be taken, such
oath must be taken in the form and manner binding
upon the conscience of the party swearing, Ho eon-
.