24 APRIL 1852, Page 13


TEE reasons which the Judges of the Court of Exchequer give for their decision in the case of "Miller versus Salomons M.P." do not so much settle the question involved, as keep it open.

Mr. Baron Martin began with an elaborate review of the plead- ings and the anterior cases, and then he applied to the present case the ordinary rule for the construction of statutes,—ascertain what was the previous law, the mischief for which the previous law has not provided, the remedy provided by the statute, and the true rea- son of the remedy. Applying that rule, he conceived that the mis- chief for which the abjuration-oath was provided was the existence of persons in this realm disaffected to the succession of the Crown as altered at the Revolution ; by the 1st George I. stat. 2. cap. 13, that oath was to be taken by all persons suspected of disaffection ; to render such an oath effectual, it must be binding on the con- science of him that takes it; and therefore, to render the statute ef- fectual, it is necessary that Jews be permitted to omit the words " on the true faith of a Christian" included in that oath, from which the existing oath is copied.

Mr. Baron Alderson agreed in that construction where the oath is taken in order to establish any proposition by a witness ; but not where, in taking office, the form of the oath is specifically pre- scribed as a qualification for taking such office. The recently-dis- covered Jesuitical "Treatise on Equivocation," found in the hands of an accomplice of the Gunpowder Plot, throws some light on the point of the words. That treatise sanctions mental reservation, even when it is disavowed, except when the disavowal brings the swearer's religious faith in doubt • and the statute enacted in the same year, 1605, with reference io the Plot, first introduces the words "on the true faith of a Christian," as most binding : they form therefore an essential part of the oath contemplated by the Legislature. But this judgment Mr. Baron Alderson accompanied by some remarkable observations. He did not think it worthy of the Legislature that Jews should be excluded by the casual and in- direct operation of an enactment not intended to exclude them. The pains and penalties incurred by Mr. Salomons involved dis- abilities of the most fearful kind, almost rendering him an outlaw ; and therefore he, the judge sittino•° on the bench, " hoped that some remedy would be provided for these consequences at least, by the Legislature."

Mr. Baron Parke accepted the oath as explicitly and specifically prescribed by the Legislature, and not to be evaded without the incurring of the penalties prescribed. A remark made by this judge is not less signal than that put forth by Mr. Baron Alder- son. He glanced at the absurdity involved in the compulsion placed upon disaffected persons generally to take the oath, but thought it improbable" that the oath could be enforced " against a Jew or a person not a Christian, who in those times were few in Great Britain, and who were very unlikely to be engaged in plots on behalf of the Roman Catholics to subvert the Protestant suc- cession": and if it were enforced, he added, against a few who could not take it conscientiously, it would be impossible to say that it was so flagrantly unjust as to warrant the judicial opinion that the Legislature could not have intended it. This observation hardly meets Mr. Baron Martin's argument, although it recognizes a ne- cessity for meeting it. Again, Mr. Baron Parke refused to assume that the Legislature intended to admit into Parliament any per- sons who are not Christians.

The Lord Chief Baron Pollock accepted the statute in its plain and obvious meaning ; upon which no doubt was thrown by the statutes in pan materiel : and he also found that Jews had been specifically released from the use of the words in the oath in the registering of their names and real estates,—a specific exemption implying non-exemption in other cases. It will be observed, that in these several judgments, the judicial purview of each individual judge took in only a part of the whole question ; while two of the judges adverse to the defendant leave a sort of hiatus in their judgment. Mr. Baron Martin regards the virtue and objects of oath-taking ; Mr. Baron Alderson, the bearing of oath-taking for office, and the specific intent of the words in question, the operation of which he avowedly regards as a "mischief" inflicting upon Jews cruel disabilities; Mr. Baron Parke, the intent of the Legislature, with a presumption that the unjust enforcement of the oath was improbable, and an opinion that it was not so unjust as to become absurd; the Chief Baron, the intent of the Legislature alone, refusing to look beneath the meaning obvious on the surface. Specifically, as determining, on technical grounds, the liability of Mr. Salomons to the penalty, the judgment of the court is clear, and was duly proclaimed as being "for the plaintiff "; but for the larger issues at stake, it is evident that the judgment does not at all bear the nature of a de- cision. One of the judges denies that the oath was intended to operate so as to subject Mr. Salomons to the penalties ; another

declares that subjection to be a " mischief" demanding remedy ; a third hesitates to think the infliction absurd, because he will not pronounce negatively upon the length to which the Legislature may go in the direction of injustice, and he thinks it " improbable " that the oath could have been compulsorily enforced upon Jews. Thus, the operation of the law as it is upheld by the majority of the Judges in the Exchequer Court is partly based on a doubt as to probability by one judge, by another is declared to be mis- chievous, and by a third is declared not to be the law at all. We must remember that this law, thus accompanied by grave doubt and judicially proclaimed to be mischievous, bears not only upon the defendant in the particular case, but upon the whole body of Jews. Whether the question of law be brought by appeal before a yet higher judicial tribunal or not, it is evident that such a judgment, so pronounced, invites ulterior handling of the sub- ject. The reasons of more than one judge demand at least a de- claratory act ; another judge calls the Legislature to its duty in rendering the law ingenuous and direct, and in purging it of a bad oppression. Not only do such incidents, by the force of right feeling, invite legislative intervention, but they must point out to the Legislature the existence of a statute law which cannot command public respect to back its enforcement. It is indeed of too technical a kind, and limited in its bearing on too small a sec- tion of society, to arouse any violent public agitation ; but there it stands on the statute-book, blotted by the judicial hand as a doubt, an injustice, and a mischief.