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and
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The Acts of 1866 and 1869-70 must not be read together, because the legislature could not be supposed to have
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them to be so read. To this argument--one of the two mutually exclusive methods of interpretation of law which judges employ at their choice--Mr Justice Mathew added a pointed comment on one of the defendant's arguments. Bradlaugh, he said, had
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On which his lordship absurdly remarked that
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It plainly follows on this, either that the work of a member of Parliament is _not_ an
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or that it is not a privilege. The first alternative is absurd; the other quashes the judge's argument. Further, it is the historical fact that Bradlaugh and other Freethinkers _had_ regarded the power of giving evidence in court as a privilege, and had so described it. It may suffice to give these grounds, for the view of many of us is that the decision was unjust. But neither at this nor at any other time was Bradlaugh known even in private to question a judge's fairness. His loyalty to the established system of
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that the appeal would be made till nearly the end of the statutory twelve months. The point being dropped, Bradlaugh on 23rd March moved the Court of Appeal to expedite the hearing. As the appeal was
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[150] it could be taken promptly, and on 30th March it was heard before Lords Justices Bramwell, Baggallay, and Lush. Bradlaugh began by arguing that Clarke was not legally entitled to sue, the Act founded on by him having been repealed by another which did not re-enact permission to anybody to sue. Going over the other ground afresh, he argued that the Act of 1866 made no exclusion of any class of persons whatever; and that the legislature ought therefore to be held as having desired to enable every class of citizens--an argument much more cogent, to the lay sense, than the contrary inference drawn by Justice Mathew. The arguments were long and intricate on both sides; and one of Bradlaugh's remarks in his closing address shows to what length of speculativeness they sometimes went:
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The learned counsel said the word 'solemnly' could not mean 'sincerely,' because there was already the word 'sincerely' in the declaration. By the same process of reasoning the word 'sincerely' cannot be construed to mean 'truly' because there is also the word 'truly' in the affirmation. I think it is better to confine ourselves to law, and not go into philology. Towards the close, on a question as to whether their lordships' judgment was to be judicial or extra-judicial on both points raised, Bradlaugh remarked,
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The House of Commons has been very generous in its treatment of me, and I am anxious to reciprocate that generosity, adding a hope that their lordships would not think he was pressing his point unduly.
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If you will allow me to say so, replied Lord Justice Lush,
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But the judgment (delivered on 31st March) was again hostile, being to the effect that Clarke was entitled to sue, and that Bradlaugh was not entitled to make the Parliamentary affirmation. The reason given by Lord Bramwell, the presiding judge, was that the Parliamentary Oaths Act of 1866 would only permit affirmation to persons _already entitled_, like the Quakers, to make affirmation
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Unbelievers not being thus already entitled (having only the right to affirm as witnesses), Bradlaugh was not entitled to affirm by the Act of 1866, read in connection with others which did not give a complete qualification. That is to say, as I understand him, Lord Bramwell argued that the Act of 1866 was meant to give the right of affirmation in a particular case to persons who already had it in all possible cases. It sounds sufficiently absurd, and I may have failed to follow the reasoning; but I can arrive at no other interpretation of his words as published. Lords Justices Baggallay and Lush concurred. The latter put it that the
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in the Act of 1866
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that is, persons having
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Therefore I feel no doubt whatever that the true construction of this sentence is that Parliament never intended to allow every person whomsoever when elected to appear before the House of Commons, and on stating that he had a conscientious objection to the oath, being permitted to make affirmation. Nobody, as it happened, had ever said so. But Lord Justice Lush's confident conclusion as to the intentions of Parliament involves this: That Parliament, knowing there were Atheist members, _deliberately chose to have them take the oath, rather than let them make affirmation_. To this outrageous conclusion all these judges are shut up; for there is not a word in any of the Acts about excluding Atheists; and if the
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of the legislature are to be looked for--thus argued Sir Hardinge Giffard in this very case--