Charles Bradlaugh: a Record of His Life and Work, Volume 2 (of 2)

In the way of more direct action, Bradlaugh on 5th July notified Gladstone that he proposed again to present himself to take the oath, and on the 9th Northcote interrogated the Premier on the subject. Left to do as he would, Northcote once more moved that Bradlaugh be excluded from the House until he should engage not to disturb its proceedings; and on a division 232 voted for the motion and only 65 against, Gladstone deprecating any division at all. On the next day, on receipt of the order of exclusion, Bradlaugh notified Captain Gossett, the Sergeant-at-Arms, that if Captain Gossett would say he interpreted the order to involve the use of physical force to resist Bradlaugh's entry, he would take legal proceedings to obtain a restraining injunction from the High Court of Justice against such resistance. In this way the legal question might be raised and settled without a fresh scuffle. In the House the Speaker declined to let this letter be made ground of discussion as a matter of "privilege," though he allowed the letter to Gladstone to be so treated. The Sergeant-at-Arms, however, made the requisite answer, and the action was duly begun (19th July). The Treasury defended, and on Bradlaugh's appeal the case was tried by a "full Court." It came on before Lord Chief Justice Coleridge, Mr Justice Stephen, and Mr Justice Mathew, on 7th December, the defence arguing by Demurrer to the Statement of Claim. Bradlaugh's pleading was one long argument with the judges, who followed him with great care; and on 9th February 1884 they gave their judgment, not unexpectedly, against him. The view taken was, broadly, that "if injustice has been done, it is an injustice for which the courts of law afford no remedy," which had been the contention of the Attorney-General. Mr Justice Stephen, while concurring with Lord Coleridge to the above effect, delivered a separate and very careful judgment. They could not, he said in effect, assume that the House intentionally defied the law. It must have supposed it was within the law. Then the Court could not pronounce its action illegal without hearing its reasons. But the House could not without loss of dignity give the Court its reasons, or allow the Court to overrule them. Therefore the plaintiff, right or wrong, had no legal redress. If wronged, he must go to the constituencies. In fine, the breaking of any law by the House in its own procedure would not be illegal, or, if it were, the illegality could not be redressed by the law courts. The House of Commons might be restrained in the case of an illegal order against a stranger, but not in the case of an illegal order against one of its own members. If it erred or did injustice, it was in the position of an erring or unjust judge, from whose decision there was no appeal. The rights of the constituency of Northampton and their member were strictly legal rights; but it lay with the House to override them if it would.

Expecting this decision, Bradlaugh had already laid the new situation before his constituents, in order to have their assent to his action on the re-opening of Parliament, and once more they declared their entire confidence in him. He had also arranged with the Tories, through his colleague, to take no action in the House before 11th February, if they would take none. His course now was to go to the House on 11th February, go up to the table with Mr Labouchere and Mr Burt as his introducers, and once more administer the oath to himself.

The Speaker gave the customary order to withdraw, and Northcote, after stating that Bradlaugh had not taken the oath according to the statute, absurdly moved that he "be not allowed to go through the form of repeating the words of the oath prescribed by the statutes." Then ensued the customary miscellaneous debate. Gladstone at much length suggested that there should be no division. Mr Labouchere offered to agree if Northcote would limit his motion to the time within which it would be possible to obtain a legal decision on the legality of Bradlaugh's latest act of self-swearing; but Northcote would not agree, and Mr Labouchere proceeded forcibly to argue the point, not only declaring the act to be in his opinion legal, but adding: —

"I confess that, for my part, I do regard these words of the oath [which Bradlaugh had called an unmeaning form] as an utterly unmeaning form – (Opposition cries of 'Oh, oh') – utterly and absolutely an unmeaning form. To me they are just the same superstitious incantation – ('Hear, hear,' laughter, 'Oh, oh,' and 'Order') – as the trash of any Mumbo-Jumbo among African savages. (Renewed laughter, cries of 'Oh, oh,' and 'Order.') Why do hon. gentlemen say 'Oh, oh'? Are they aware that there are many in this House who regard these words as a blasphemous form? ('Hear, hear.') I say I regard them as an unmeaning form."

From this point at least, if not before, the proceedings against Bradlaugh in the House may without fear of contradiction be described as an indecent farce. His colleague had in the most aggressive fashion, and within the House, declared the oath to be in his opinion a superstitious, barbarous, and senseless incantation. Mr John Morley, as Positivist, had taken the oath without contradiction. And before either of these episodes Mr Ashton Dilke, whose vacated seat for Newcastle Mr Morley obtained, had declared in the House, in course of debate, that he was without belief in the reigning religion. Bradlaugh, who heard the avowal, remarked on the stilled surprise with which it was received. But no one ever sought to challenge the right of Mr Dilke, Mr Morley, or Mr Labouchere to sit in virtue of having taken an unbelieving oath. The Tory talk in the House of "profanation" is thus stamped once for all as a tissue of the worst hypocrisy; and the Tory leader and all his men stand convicted of a course of dissimulation as cowardly as it was shameless. They would attack the "unpopular" man; they would not obstruct Mr Morley, since that would bring up the question of Tory Atheism; they would not proceed against Mr Labouchere, since he was likely to publish in his journal the names of some of the Tory Atheists.

Gross as it had become, the farce went on. Forster, who now spoke on the subject for the first time, gave a touch of dignity to the debate by protesting against Mr Labouchere's remarks on the oath (though without proposing to have him proceeded against), and saying, as Gladstone and others had said before, that the opposition to Bradlaugh was one of the greatest blows against the cause of religion that had been struck for many years. Northcote, making no comment whatever on Mr Labouchere's hardy avowal, briefly explained the force of his motion; and after this irregularity the debate grew more and more confused. It was known that Bradlaugh meant as before to vote in the division; and the Speaker was repeatedly appealed to to prevent it. He declared he had not the power; and Mr Healy – in one of a series of grossly insolent speeches, in which he spoke of "the Government, Bradlaugh & Co." – moved immediately after the division, before the numbers were announced, that the vote be expunged. After much squabbling, the House divided on this point, when there voted 258 Ayes and 161 Noes. Bradlaugh's vote with the Noes was thus "disallowed;" but after the voting on the original motion had been stated – 280 Ayes and 167 Noes – Mr Labouchere announced that Bradlaugh had voted with the Noes on the motion to expunge his previous vote. The farce was thus pretty complete.

Northcote then made his usual motion to exclude Bradlaugh "from the precincts of the House until he shall engage not further to disturb the proceedings of the House." Again the debate broke out. Mr Labouchere offered to undertake that if the motion was withdrawn Bradlaugh should not disturb the proceedings until he had obtained a legal decision on this last oath-taking; and Gladstone and Bright pointed out the hardship and indignity of excluding Bradlaugh from the very library and lobbies of the House; but Northcote, swayed as usual by the worst of his followers, pressed his motion, disregarding Mr Burt's final repetition of the undertaking that Bradlaugh should not disturb the proceedings till his law case was settled. On a division, 228 voted for the final indignity, and only 120 against. The farce had become as ignoble as meanness could make it; and Northcote was admitted by most people to have fully realised the character in which he was more than once presented by the caricaturists – of pantaloon to Churchill's clown in the Tory pantomime. Churchill took the lead on the following evening when, Bradlaugh having "applied for the Chiltern Hundreds," Mr Labouchere moved that a new writ be issued for Northampton.184 The hereditarily noble lord saw that if Bradlaugh were re-elected they would be no further forward; and his object was to exclude him permanently. He had lately given notice of a motion that Bradlaugh be declared incapable in perpetuity of sitting, but had dropped it as hopeless. He now "moved the adjournment of the debate." A straggling and noisy debate ensued, in which Mr Healy was pronounced disorderly by the Speaker for his interruptions of Northcote, whose ally he had been. On a division, only 145 voted for the adjournment, and 203 against. Then more discussion as to whether the Chancellor of the Exchequer had the right to grant the Chiltern Hundreds, the motion for the new writ being finally agreed to.

Unseated for the third time since his perfectly valid return in 1880, Bradlaugh appealed to his constituents to elect him for the fourth time, and was received by them with if possible greater enthusiasm than ever. A new Tory candidate, Mr H. C. Richards, had been for some time in the field, and the seat was fought in the old fashion; but whether owing to the feebleness of the candidate, whom Bradlaugh generally treated with humorous contempt, or a sense of shame among some of the local Tories, the opposition vote now fell away. The forces of bigotry had squeezed the last possible vote out of the borough, and after a short and strenuous struggle the poll (19th February 1884) ran: Bradlaugh, 4032; Richards, 3664. Bradlaugh had clearly "touched bottom," and begun to rise again. At the general election he had polled 3827, and been 695 above the highest Tory; in 1881 he had only polled 3437, a majority of only 132; in 1882, polling 3796, he was only 108 above his opponent with 3688; now he had reached a higher figure than ever, polling 368 more than the Tory, who was 24 below the last Tory vote. The Tory game was now hopeless so far as Northampton was concerned.

The badgered Northcote, goaded by his lawless following, now proposed to take the step of preventing Bradlaugh from entering the House on his new return. Learning this, Bradlaugh on the 20th wrote a letter of protest to the Speaker and the Premier, and the anticipatory course was prevented. But when on the 21st the Speaker read to the House a second letter in which Bradlaugh formally undertook (as his introducers had undertaken for him before) not to present himself at the table until judgment should be given in the test action to be laid against him by the Government. All the same, Northcote moved, amid cries of "Shame," his old resolution of exclusion "from the precincts." The Tory army had to be solaced somehow for Bradlaugh's decisive victory at the poll. Gladstone opposed, and yet again there was a miscellaneous debate, in the course of which Churchill made the worthy suggestion that the Government meant that Mr Bradlaugh was to be allowed once more to appeal to the mob, in order that not only the House of Commons might be prejudiced, but that even the courts of law might be biased by the demonstration in his favour. On a division, 226 voted for Northcote's motion and only 173 against. Bradlaugh was now denied the use of the House's library for the lawsuit pending against him on the House's behalf. He addressed to Northcote, and printed in his journal, an open letter touched with indignant contempt.

The critical part of the letter, and perhaps the special sting of some of the phrases – as, "You wear knightly orders. You should be above a knave's spitefulness" – moved Northcote to send a long defensive reply, repeating the "profanation" formula, and concluding: "The inconveniences of which you complain are inconveniences which you might, if you chose, put an end to to-morrow" – which meant that Bradlaugh might have the use of the House if only he would undertake never again under any circumstances to try to take his seat. To this "knightly" suggestion185 Bradlaugh replied with perhaps too scrupulous courtesy of form, but with sufficient emphasis, and turned himself once more to the struggle outside.

§ 21

From this point forward it is difficult to record the course of the Parliamentary struggle with the serious patience hitherto spent on the narrative. On the side of the House it had become a revolting hypocrisy, since Bradlaugh was being ostracised for what other men were allowed to do freely; and the form of legality put on in the resort to the law courts was only a new simulation. The law courts had declared that they could have no possible jurisdiction over the House in such matters however it might break the law, and still the House was formally proceeding to obtain from the law courts penalties against Bradlaugh for trying to fulfil the law when the House hindered him. The House knew quite well that if it had even declared him entitled to affirm under the existing law, no court would have decided otherwise. The hostile decision was here a foregone conclusion; for a fortiori the courts, after their last emphatic decision, would not prevent the House from interpreting the law as to swearing in its own way. Only the strenuous energy of Bradlaugh, joined with his chivalrous belief in the ideal rectitude and jurisdiction of the judges, could have set any man in his position on a fresh legal adventure.

Begun in March 1884, the lawsuit at the instance of the Government came on before Lord Chief Justice Coleridge, Mr Justice Grove, Mr Baron Huddleston, "sitting at bar," and a special jury, on 13th, 15th, 17th, and 18th June. Against Bradlaugh were arrayed five counsel, – the Attorney-General, the Solicitor-General, Sir Hardinge Giffard, Mr Danckwertz, and Mr R. S. Wright, and the case was argued at enormous length on a multitude of minutiæ as to Bradlaugh's original evidence before the first Select Committee, the practice of the House, the position of the Speaker on 11th February, the law as to what constituted the oath, the force of an oath taken by an atheist, and so on. After two delays, caused by the illness of Lord Coleridge, his summing-up, which was proportionately long and elaborate, was given on 30th June. It advised the jury that the weight of evidence was to show that Bradlaugh was all along an unbeliever in a Supreme Being – a point which Bradlaugh argued should not have been raised – that in law a person on whose conscience an oath would have "no binding effect" was a person who could not legally take a oath; and that Bradlaugh had not taken the oath in accordance with the practice of Parliament. The other judges concurred; but Lord Coleridge having spoken of inquisitorial questions on belief in general (not those in the Bradlaugh case in particular) as "hateful" and "disgusting," Mr Baron Huddleston desired to express dissent on that head, while Mr Justice Grove said he would call them, "to use a mild term, extremely objectionable." The Lord Chief Justice, remarking that he felt strongly on the matter, gracefully agreed that his words should be "discounted" on that score.

Formally, there went to the jury eight questions, to this effect: (1) Was the Speaker sitting when Bradlaugh took the oath on 11th February? (2) Was he sitting to prepare notes for use in addressing Bradlaugh? (3) Had he resumed his seat to let Bradlaugh swear? (4) Was Bradlaugh then without belief in a Supreme Being? (5) Was he a person on whose conscience an oath, as an oath, had no binding force? (6) Had the House full cognisance of these matters through Bradlaugh's avowal? (7) Did he take the oath according to Parliamentary practice? (8) Generally, did he take and subscribe the oath?

The jury's answers were, in brief: – (1) Sitting; (2) Sitting to prepare notes as stated; (3) No; (4) He had no such belief; (5) Yes; (6) Yes; (7) Not according to the "full" practice; (8) Not as an oath.

Bradlaugh at once asked for a stay of judgment in order to enable him "to move for a new trial to move to enter judgment for the defendant non-obstante veredicto, and to move for arrest of judgment." Outsiders had supposed that the jury trial ended the matter, but it was not so. Bradlaugh wrote in his journal undauntedly: "If my constituents still give me their confidence, nothing can defeat me;" and when friends wrote that they could see no hope of good from the "wearisome and disappointing litigation," he characteristically answered: —

"There are only two weapons to defend the right with: Law and Force. As yet I try the law; and so long as I believe, as I do believe, the law to be on my side, it is to the law and to public opinion I ought to appeal. My opponents rely on force and trick. If the law was actually against me they would take away my seat by law. This they do not even try to do. They hope to weary my constituents, and to tire and ruin me in this contest. Hampden, resisting ship-money, fought more than three years in the law courts; but his wearisome litigation was not quite in vain. Wilkes, backed by Earl Temple with purse and power, struggled with the Commons through several weary years, and at last Middlesex gave him victory."

The appeal was, on the face of it, a better case than Bradlaugh had had in defending the action of the Crown. It came on, on 6th December, before the same judges, sitting "in banc," who had tried the action "at bar," Bradlaugh turning out to be right in his theory of the proper procedure, whereas the judges had all been avowedly in doubt. But the greater apparent force of the case as now put did not avail. Bradlaugh cogently argued that no Act of Parliament gave the least countenance to the notion that Atheists were to be disabled from swearing. The Parliamentary Oaths Act of 1866, cap. xix., enjoins on members of Parliament, with the exception only of those qualified to affirm, the taking of an oath of allegiance of uniform phrasing, thus admitting of no disability, and making an end of any disability which may be supposed to have previously existed. Yet again, an Act of 1867 expressly provided that any subject of Her Majesty, without reference to his religious belief, should take the oath of allegiance on taking office. But Lord Coleridge had in the previous trial fully made up his mind that "oath" must mean "adjuration made by one believing in the Deity adjured," and he early indicated that this conviction overthrew all arguments from the mere wording of statutes. On the Act of 1867 he remarked (with a discourtesy which for him was unusual, and which disappears in the report) that "a little common sense and a little knowledge of history" would have made the appellant aware that that Act was passed on behalf of a Roman Catholic judge. Bradlaugh knew the facts well enough, and capped the Lord Chief Justice's history with some more, all going to show that the wish of the legislature had then been to sweep away all religious disabilities whatever. It was all to no purpose. Lord Coleridge was rather a man of strong sentiments than a strong lawyer. He hated all persecution on behalf of religion; and on behalf of Messrs Foote and Ramsey he stated the law of blasphemy in the mildest possible way – a way to which Mr Justice Stephen, albeit a rationalist, declared he could not subscribe. But Lord Coleridge was also an emotional Christian; and though his admired friend Arnold would readily have taken the oath without any belief in the Deity adjured, his Lordship was strongly averse to having it taken by an "aggressive" Atheist; and though he must have known perfectly well that in Parliament there had for generations been known holders of atheistic views, and that nobody proposed their exclusion, he yet chose to assume that all laws as to oath-taking were meant to exclude oath-taking by Atheists. One or two notable passages took place between him and the appellant. Lord Coleridge, in his nervous irritation at being persistently argued against, once so far forgot himself as to say Bradlaugh was wasting time. The charge was too bad: Bradlaugh was one of the closest and concisest of pleaders, as many judges had admitted; and at a later stage in this trial the Lord Chief Justice took back his words. At another point he somewhat impatiently deprecated a particular line of argument, and Bradlaugh quietly answered, "My Lord, I must fight with what weapons I can." Once or twice more his lordship was rather idly petulant,186 but this was transient; and he was very genial when, on his remarking, "It may be, of course, that you are right and we are all wrong," the appellant answered, "With the utmost respect, my lord, that is practically what I am going to contend."

Justice Grove, an amiable and fair though unsubtle judge, argued very courteously (while incidentally avowing that his sympathies were on the side of minimising oaths) that the legislature could not be held to have enacted an oath in the tolerant expectation that it would be taken by some men for whom the adjuration had no meaning. That was no doubt a perfectly reasonable point for a judge to put; but, on the other hand, nothing is more common than the plea of judges – it was made by Justice Grove himself – that they have only to do with the law as it stands; and if in this case they were to look into the probable state of mind of the legislature, it was plainly their business to take into account all the well-known facts of the case, including the notorious fact that members known to their fellow-members to be Atheists or "Lucretian" Theists had repeatedly sat in the House.

Their lordships, of course, repeated their former decision – Lord Coleridge giving the very inaccurate reason that no "new point" or "new argument" had been raised – and the rule for a new trial was refused. Immediately Bradlaugh appealed; and the case was heard (on the motion for a new trial, and, secondarily for seven days' time to move for arrest of judgment after the first motion should have been adjudged upon) in the Court of Appeal on 15th December by Lords Justices Brett (Master of the Rolls), Cotton, and Lindley. These judges heard the appeal with great patience, and on the 18th gave judgment to the effect that they could not grant a rule for a new trial on the ground that the verdict was against the evidence. But on "many other questions in the case which it is not improbable might all be raised upon the appeal by way of arrest of judgment," they thought it right to grant "a rule nisi to show cause upon all the other points taken by the defendant, upon condition that the appeal in arrest of judgment is brought on at the same time." The argument on this rule was taken on 26th January 1885, when the Attorney-General and Sir Hardinge Giffard argued (a point which had been left open before) that no appeal lay, the case being technically a criminal one. This plea, after voluminous argument, was overruled – the point being settled by Bradlaugh's references to portions of the Crown Suits Act which the other side had not dealt with. Then came the argument on the main issue. To a lay listener Lord Justice Brett seemed to give a more strictly judicial attention to the problem than did any of the judges who had dealt with it hitherto, and never was the subject more fully illuminated. In a previous trial Justice Grove had noticed the anomaly that whereas an oath or affirmation was set up as a means of securing true answers, the judge had to satisfy himself beforehand on a witness's bare word as to the nominally all-important point whether an oath would be "binding on his conscience." Bradlaugh now brought out another no less precious anomaly, namely, that the Speaker, at the opening of Parliament, must of necessity administer the oath to himself; and that the first forty members must positively break the law, seeing that they swear while there is not a "full House" sitting. Another curious issue was raised by the Court. An unbeliever could certainly be punished for perjury; how, then, could his oath be "no oath," when perjury expressly meant false testimony given on oath? Sir Hardinge Giffard's answer was that no man may "take profit from his own wrong." It might have been more dramatically put that the Christian law says to the Atheist, "Heads, we win; tails, you lose."