MR. JUSTICE STEPHEN'S LESSON TO PARLIAMENT.
MR. JUSTICE STEPHEN, in the admirable judgment which he delivered on Saturday last, in the case of "Bradlaugh v. Gosset," has read the House of Commons a lesson which there is clear evidence that some of the stouter Members of the hue and cry' against Atheists took in in- tellectually, though they immediately proceeded to ignore it morally. That lesson was all the more solemn and effective for the care with which Mr. Justice Stephen avoided any possibility of direct collision between the Courts of Law and the House of Commons on questions affecting its internal discipline and procedure. We need hardly say that Mr. Justice Stephen found ample evidence of the deliberate re- fusal of the Courts of Law to attempt to over-rule Parliament, not merelyin enforcing its own discipline and procedure, but also in interpreting for itself those statutes which prescribe that discipline and procedure. " No doubt," he said, "the right of the burgesses of Northampton to be represented in Parlia- ment, and the right of their duly elected representative to sit and vote in Parliament, and to enjoy the other rights inci- dental to his position, upon the terms provided by law, are in the most emphatic sense legal rights of the highest import- ance and in the strictest sense of the words. Some of these rights are to be exercised out of Parliament, others within the walls of the House of Commons. Those which are to be exer- cised out of Parliament are under the protection of this Court, which, as has been shown in many cases, will apply proper remedies, if they are in any way invaded, and will in so doing be bound not by resolutions of either House of Parliament, but by its own judgment as to the law of the land, of which the privileges of Parliament form a part. Others must be exercised, if at all, within the House of Commons, and it seems to me that from the nature of the case such rights must be dependent upon the resolutions of the House. In my opinion, the House stands with relation to such rights and to the resolutions which affect their exercise, precisely in the same relation in which we, the Judges of this Court, stand to the laws which regulate the rights of which we are the guardians and to the judgments which apply them to parti- cular cases, that is to say, they are bound by the most solemn obligations which can bind men to any course of conduct what- ever, to guide their conduct by the law as they understand it. If they misunderstand it, or (I apologise for the supposition), wilfully disregard it, they resemble mistaken or unjust Judges, but in either case there is, in my judgment, no appeal from their decision." The part of this remarkable passage which we have italicised must have struck a certain sense of shame into those Members who have, as so many of them have, made a great electioneering cry of their determina- tion never to let acknowledged Atheists into the House of Commons, and who in the debates of that House have acted, not as if they were a solemn Court sitting to interpret the mean- ing of statutes affecting their own procedure, but rather as if they were a party of Atheist-hunters intent on running their chase,—Mr. Bradlaugh and the Government which declined to take their view of the law affecting him,—to death. Within two days of Mr. Justice Stephen's impressive judgment, they were giving us another repetition of that melancholy spectacle, and yet it was clear that some of the acuter Members of the House had taken alarm at the drift of Mr. Justice Stephen's judgment. Absolutely repudiating as he did all power of in- terfering with the deliberate decision of the House of Com- mons as to the true interpretation of the statute affecting the oath to be taken in the House of Commons, Mr. Justice Stephen had, nevertheless, quite as solemnly asserted the right of that Court to pass its own opinion, without relation to the resolutions of the House, on the statute law defining the rights and obligations of Members, so far as those rights and obligations are to be exercised or enforced outside the Houses of Parliament. Now, it is notorious that, so far as regards the fines and penalties imposed on Members who do not comply duly with the statute as regards the oath of allegiance, they can- not be enforced at all inside the Houses of Parliament, and here, therefore, the jurisdiction of the Courts of Law will be supreme, and they will take account of the resolutions of the House of Commons only so far as those resolutions are, in the opinion of the Court, true interpretations of the statute. On Monday night, when Mr. Bradlaugh succeeded in taking the oath after his own fashion, and subsequently in voting in two divisions,—which involves the penalty of a fine for any Member who has not taken the oath in the form required by law,—he directly raised a question in which the Courts of Law may assert their own' authority over the authority of the House of Commons. The Courts will not, indeed, interfere with the jurisdiction of the House within the House. But they will enforce a fine pre- scribed by statute, only if they consider that under the statute the obligation to pay that fine has been drily incurred. In
other words, a prosecution to enforce the fine against Mr. Bradlaugh Will bring out the view of the Courts of Justice as to whether he did or did not duly take the statutable oath of allegiance, and whether, in consequence, he is or is not liable to the penalty inflicted on Members voting in a division with- out taking that statutable oath. Should that question be submitted to the Courts, and should the Courts—as is at least possible—decide that Mr. Bradlaugh is not liable to that fine, the House of Commons will be placed in this most humiliating position, that their action will have been virtually condemned by great lawyers, giving their opinion with the due judicial deliberation and solemnity. The whole hue and cry against Mr. Bradlaugh will then be understood by the nation to have been a mere machinery for bringing about a miscarriage of justice.
This danger was at once perceived by one of the fiercest of the Irish crusaders against Mr. Bradlaugh, and Mr. O'Donnell put on the table of the House this notice of motion,—" That Mr. Attorney-General take no proceedings in any Court of law in any matter touching this House, without the ex- press authority of this House." That means in reality that the party who have sucked no small advantage out of this hue and cry against Mr. Bradlaugh, are dreadfully afraid of having the law which they have interpreted so passionately and unjudicially, reviewed in a really judicial spirit by such a Judge as Mr. Justice Stephen, and of having their decision found wanting. The effect of that on the graver mind of the country would undoubtedly be great. No matter that in spite of such a review, even if the Courts of Law decided that Mr. Bradlaugh had duly fulfilled in their opinion the conditions of the statutable oath, the House of Commons would neither be censured .nor involved in any dispute as to jurisdiction with the Courts. Still, the moral effect of such a decision would be a grave censure,—all the graver for the unruly and dis- orderly way in which the Atheist-hunters have pushed their case in the House of Commons,—where on Monday night, for instance, they flagrantly ignored the deliberate ruling of the Speaker.
We hold, and have always held, that from first to last the majority of the House of Commons have taken an erroneous view of the law of the oath of allegiance ; but of course it is not all who have taken the opposite view to our own who should feel ashamed when they read Mr. Justice Stephen's account of the solemn obligations under which they stood to interpret the law gravely and without partiality. There are many, we know, who refused Mr. Bradlaugh permission to take the oath, who did so in the grave judicial spirit which Mr. Justice Stephen describes as incumbent on the House of Commons when it sits as a judicial - assembly. There are many on the Conservative side who followed Mr. Gladstone's example in entirely refusing to allow party spirit to enter into the interpretation by the House of Commons of the meaning of a statute. But there are only too many in whom Mr. Justice Stephen's words ought to inspire shame, even if they fail to inspire it. There are too many who have taken part in the Bradlaugh debates more in the spirit in which they ride to hounds, than in the spirit 'of a judicial assembly. And we must say we look forward with sincere satisfaction to the effect on the mind of the country, of a deliberate review by the Courts of Justice of the requirements of that statute which so many Members of the House of Commons have used mainly for the purposes of a party conflict, and so used " with a light heart." .
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