Chapter XXVII: Act 1870: , I have repeatedly for nine years past affirmed in the (7)

Three years had now passed since Bradlaugh first sought to take the seat to which he was alike morally and legally entitled--three years of manifold exhausting and sorely burdensome strife, of iniquitous and vile calumny, of lawless and shameful persecution, in part brutally fanatical, in part dishonest and hypocritical in the lowest degree. It had been made to embrace all who were closely connected with him. First Mrs Besant was insultingly refused leave to use the garden of the Royal Botanic Society for her studies, on the score that the daughters of the Curator used it. Later (1883) the Misses Bradlaugh were denied membership of the "Somerville" (Women's) Club on the score that their names were sufficient objection. Yet later (2nd May 1883) Mrs Besant and Miss Bradlaugh were refused admittance to the practical Botany Class at University College, London. On applying by letter, they were requested to present themselves, and then they were told in person by the secretary and the "lady superintendent" that they could not be admitted, because there was "some prejudice" against them. It seemed as if nothing short of the personal insult would suffice the officials concerned; but the Council[183] endorsed their action at its meeting of 7th May, though the very purpose for which the College had been founded was to dispense with religious qualifications. A memorial requesting the Council to summon an extraordinary general meeting to consider this action was signed by, among others, Professors Huxley, Bain, and Frankland, and Dr E. B. Tylor; but on the meeting being held, the medical graduates came in large numbers to support the action of the Council, greatly outvoting the others. Only nine voted against. The University College was thus committed to a course of ethical rivalry with the House of Commons, outdoing that body, however, in declining to assign any reason for its action. At the meeting Mr Justice Denman took an active part in justifying the action of the Council, and it went from him to the country that the excluded ladies had "refused to comply with the rules of the College." This was pure fiction. Mrs Besant described it at the time as a "cruel and malignant falsehood, for we complied with every condition laid down to us." Informed of his mis-statement, Mr Justice Denman made no correction. Later in the year an attempt was made to deprive of his chair a Professor of Mathematics in the South Wales University, Mr Lloyd Tanner, who was a member of the National Secular Society, and had helped the movement in support of Bradlaugh's claim. It was, however, defeated by a majority of votes.

[Footnote 183: The President was Lord Kimberley; the Treasurer Sir Julian Goldsmid; and the Council included Lord Belper, Sir B. N. Ellis, Sir A. Hobhouse, Lord Reay, and Sir George Young. I cannot ascertain who were present, save that Sir A. Hobhouse was one.]

These endless acts of persecution, parodied as they were in a thousand acts of less publicity, only roused the persecuted party to more energetic action. The Freethought propaganda was carried further than ever, and naturally did not grow more gentle. On the political side, Bradlaugh set himself afresh to rouse the constituencies, bating no jot of heart or hope. To his own constituents he offered his resignation if they wished it, and once more they emphatically refused. He accordingly issued one more "Appeal to the People," organised a series of addresses and demonstrations in the large towns, and in particular took fresh steps for overthrowing the Liberals who had helped to throw out the Affirmation Bill. Previous menaces had reduced the number of these renegades in the last trial of strength; and Torrens in particular now received hundreds of letters warning him that he need not again stand for Finsbury. In the course of a few months, Bradlaugh had addressed audiences numbering in all over 300,000, and nearly all were unanimously in his favour, while at none did the malcontents number above two per cent. In some towns, as at Halifax and Leeds, he had enormous open-air demonstrations, the numbers coming to some fifty thousand. A densely packed meeting took place in St James's Hall in July; and another Trafalgar Square demonstration was held in August, attended by some thirty thousand men, of whom hundreds came as delegates from the provinces; and concurrently with these "constitutional" gatherings there was carried on the work of the Association for the Repeal of the Blasphemy Laws, largely conducted by advanced Unitarian clergymen, who worked with a disinterested zeal worthy of the very highest praise, considering how little of personal sympathy they could have had with the imprisoned Freethinkers.

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.

[Footnote 184: In this case the Government arranged to sue Bradlaugh in the Courts for the penalties that would be incurred if his last oath-taking and voting were pronounced illegal by the Courts. It was accordingly left to Bradlaugh to vacate his seat by his own act.]

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" suggestion[185] Bradlaugh replied with perhaps too scrupulous courtesy of form, but with sufficient emphasis, and turned himself once more to the struggle outside.

[Footnote 185: The harping on the "chivalry" of Northcote by Mr Lang and others is an interesting light on the nature of their ideals. Northcote was certainly more of a gentleman than were his accomplices in the Bradlaugh struggle, but barring his comparative moderation, there was not a gleam of "chivalry" in his whole conduct of the business. As for the mass of his followers, they had, as Sir George Trevelyan has said of the Tories who ostracised Wilkes, "as much chivalry in them as a pack of prairie wolves round a wounded buffalo." Mr Lang ("Life," ii. 136) writes that "an acute and well-informed critic has singled out Sir Stafford Northcote's treatment of the questions raised by Mr Bradlaugh as the best example of Sir Stafford Northcote's tact and adroitness." The "adroitness" need not be disputed. But Mr Lang, on his own part, holds that "it would throw no light on Sir Stafford Northcote's leadership to follow the details of this tedious and protracted struggle." For "light" and "leadership," read "credit" and "character," and the proposition would be quite valid.]

§ 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."

[Footnote 186: I was present at this trial, and took notes for an article.]

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."

Despite the fairness of the hearing given, it soon became apparent that the Master of the Rolls held that "religious test" could only mean test as between different forms of religion, and that to exclude an Atheist from civic rights is not to impose a religious test. Now, the English tests of last century were as between sects, not as between religions; that is, they were denominational; that is, political. Still, they were always known as religious tests. It would surely follow that "religious test" meant any test connected with religious matters. In that case Lord Justice Brett's distinction was completely arbitrary and fallacious. But on grounds such as these, among others, the judgment was given (28th January) against the appellant. It was certainly an able judgment--as able as it was lengthy. It raised, among other things, the exquisitely complicated anomaly that Bradlaugh could satisfy a judge on his bare statement that he was an Atheist, and yet, after affirming on that ground, could be solemnly examined as to whether he was an Atheist. And the judge very explicitly laid it down that if a non-believer in a falsehood-punishing Deity were to take the oath unopposed, with all the customary formalities, he could on proof be sued for the penalty of £500 for every vote he had given. This meant, if anything, that the Atheists or Agnostics then sitting in Parliament were all so liable.

Lord Justice Cotton, with much simplicity, laid it down that the law of England "undoubtedly" was that if a person in the "unhappy position" of not believing in a lie-avenging Deity took the oath, it was not a real oath. And Lord Justice Lindley, with a certain cynical candour, dealt with Bradlaugh's main argument, that it was absurd to hold that a man is by law incapable of doing that which the law requires him to do. "I agree in the absurdity," said his lordship, "but not in the argument adduced from it." He held that the only solution would be that the defendant "could not be properly elected."

"It is a mistake to suppose," said Lord Justice Lindley further, "and I think it is as well the mistake should be known, that persons who do not believe in a Supreme Being are in the state in which it is now supposed they are. There are old Acts of Parliament still unrepealed by which such people can be cruelly persecuted. Whether that is a state of law which ought to remain or not is not for me to express an opinion upon; but having regard to the fact that these Acts of Parliament still remain unrepealed, I do not see my way to hold judicially that this oath was not kept alive by Parliament _for the very purpose, amongst others, of keeping such people out of Parliament_."

This last deliverance is memorable on several grounds--memorable as showing the need, from the point of view of one more judge, for a repeal of the brutal laws of the past against heresy; and further memorable as showing once more how ready are judges to rest alternately on mutually exclusive principles of interpretation. On the point as to whether the case was one in which an appeal lay, Lord Justice Lindley grounded his opinion on the fact that there was not to be found in the Judicature Act "the slightest indication of any intention on the part of the legislature" to prevent appeals in cases which were "previously made civil proceedings for the purposes of appeals." On the same principle, he ought to have looked whether there were the "slightest indication of any intention on the part of the legislature" in modern acts to exclude all Atheists from oath-taking. There is no such indication. Not a word is said of excluding unbelievers. On the contrary, it was only with difficulty that the legislature could be got to meet the fact that there _were_ many Atheists who at times had to give testimony in courts of law. Had the legislature really desired to exclude all Atheists from oath-taking it would surely have said so, knowing as it must have done how common unbelieving oath-taking had been. And all the judges, as individuals, must have known perfectly well that privately known Atheists had sat in every Parliament for generations. Such are the conditions of legal judgment on questions of legal principle.

Bradlaugh at once gave notice of appeal to the House of Lords; and, all things considered, he had as good chances of success as ever he had. But this litigation had now reached its climax, and the appeal did not come off. The struggle had gone far towards completing its fifth year, and relief was almost within sight. It was not to come from legislation. Mr Hopwood had undertaken to introduce an affirmation Bill grappling with the whole position, which was not merely an affair of the admission of Atheists, but of providing also for certain religionists who, not being Quakers, Moravians, or Separatists, were not entitled to affirm, though strongly objecting to the oath. And there were yet further matters to be dealt with, as the position of freethinking jurors. But the saving credit of passing such a measure was not in store for the "Liberal" Parliament. At the Liberal Conference on Reform in 1884, presided over by Mr John Morley, a resolution had been unanimously carried in favour of Northampton's right; and at the Conference of the National Liberal Federation in 1885, Mr Hopwood's Bill was unanimously approved of; but though this action was backed up by countless resolutions of Liberal and Radical Clubs, and hundreds of petitions,[187]

[Footnote 187: By August, 655 petitions had been presented, with 77,639 signatures.]

the Anglican and Roman Churches set to work as zealously as ever to oppose, the Liberal Government would make no attempt to grant facilities in the House, the Bill was blocked, and nothing was done while that Government remained in office. But when, on their being defeated at their own wish on the Budget, a Conservative Ministry took office, Bradlaugh at once presented himself (6th July) to be sworn. He might have presented himself before the re-elected Tory ministers, in which case they could not have taken part in the proceedings against him, but he treated them with the chivalry they never showed to him, and allowed the ministers first to be sworn in. The new Chancellor of the Exchequer, Sir Michael Hicks Beach, took up the matter on the lines of Northcote, who was now made a peer, and moved that Bradlaugh be as before excluded from the precincts. Mr Parnell and Mr Healy went further, appealing to the Speaker to have Bradlaugh (who was standing below the bar) wholly excluded from the House at once, before the motion was debated. To this stretch of malice the Speaker could not accede, and the debate proceeded in the usual way. Mr Hopwood moved an amendment declaring legislation to be necessary "on wider grounds than the interests of a constituency." Gladstone, though deprecating any general legislation on the subject, supported the amendment. Only 219 voted for it, however, and 263 against, the majority again including many Home Rulers and a number of Liberals, while many more Liberals had absented themselves. Against most of these, vigorous measures were taken in the constituencies, which now had before them the imminent prospect of a fresh general election. In this election it had been arranged that Bradlaugh should stand for the new borough of East Finsbury, London, as well as for Northampton, on the understanding that if elected for both he should sit for Northampton. This was a generous attempt on the part of the Finsbury Radicals to strengthen his case; but other Radical candidates being less generous, he finally withdrew from the Finsbury candidature to avoid a split in the Radical camp. In Northampton the fight had little excitement in it, the conclusion being foregone. Mr Richards at one of his meetings claimed credit for avoiding personalities, and mentioned that he had in his pockets letters from several persons offering to flood Northampton with slanderous tracts. He did not add that that device had been played out, and had become just a little unsafe besides. Towards the election day virulent placards were resorted to, from force of habit. Bradlaugh did not post a single bill. The poll (25th November) stood:--Labouchere, 4845; Bradlaugh, 4315; Richards, 3890; Bradlaugh thus standing higher than ever before. The difference between him and his colleague was represented by 366 plumpers for Mr Labouchere, and 300 votes split with the Tory, less 126 plumpers for Bradlaugh, and 10 split for him and the Tory. The news was received everywhere with special enthusiasm. But still more significant was the havoc wrought among those pseudo-Liberal members who had turned the scale against Bradlaugh in the House. Mr Samuel Morley had been forced to retire from Bristol, Mr M'Cullagh Torrens from Finsbury, the Hon. H. W. Fitzwilliam from Dewsbury, Mr Jerningham from Berwick, and then later from Blackpool, the selection being cancelled before the election; Mr George Courtauld, Unitarian, from Maldon, Sir Alexander Gordon from Aberdeenshire, Sir Thomas Chambers from Marylebone, and Baron de Ferrières from Cheltenham. These were all opposed by former supporters on the express ground of their votes in the Northampton question. Others who went to the poll, again, were defeated on the same score. Mr Norwood at Hull was defeated by the running of a special Radical candidate in protest against his anti-Bradlaugh action in the House. Mr A. P. Vivian, a frequent absentee on the question, was defeated in North-west Cornwall, and Sir W. Charley at Ipswich. Mr B. Whitworth, formerly of Drogheda, chosen and then dismissed at Hackney, was defeated at Lewisham. Prominent Tory and other enemies suffered in a hardly less degree. Newdegate, after beginning his candidature, withdrew rather than meet certain defeat; Sir Henry Drummond Wolff was defeated, so was Earl Percy, so was Sir J. E. Wilmot, so was Mr Warton, so was "O'Donnell." Dr Lyons collapsed at nomination in Dublin. M'Coan was thrown out at Lancaster, Mr Nicholson at Petersfield, and Mr Denzil Onslow at Poplar. Of new Tory candidates who had been specially offensive in their hostility, Mr Hammond was beaten at Newcastle, Mr Bruce Wentworth at Barnsley, Mr Holloway at Stroud, and Mr Edwardes-Moss at Southport. There was no mistaking the "Bradlaugh element" in these cases; and though some Radicals who had stood by him were also defeated, as Mr Hopwood and Mr Hugh Mason, that was solely owing to the hostility of the Irish vote, then being manoeuvred by Parnell to weaken the Liberals. Much of the work of destroying the renegade Liberals had been done by Bradlaugh in person in his lecturing tours. "I think I have settled a round dozen of them," he remarked some time before the election. One former Liberal member, who had been his persistent enemy in the House, finding defeat staring him in the face through Bradlaugh's action, came to him in his hotel when he was lecturing in the constituency concerned, and humbled himself to ask for mercy. Bradlaugh gravely refused. "You are very hard," whined the petitioner, who had thought fit to work iniquity with the majority for five long years, with as little thought of justice as of generosity.

The tables thus turned, it is probable that in the first Parliament which assembled in 1886, an Affirmation Bill could have been carried in the teeth of the Tory minority, seeing that even some Tory members had had to pledge themselves to support such a Bill; and Mr Serjeant Simon had arranged to re-introduce Mr Hopwood's. But the settlement was precipitated in an unexpected way. Bradlaugh wrote Sir Michael Beach asking how the Government would treat the Bill if introduced, and received a non-committal answer. Soon afterwards it was announced that communications had passed on the subject between Sir Michael and the new Speaker-elect, Mr Peel; and Bradlaugh wrote to ask Sir Michael what they were, but was refused the information, whereupon he strongly protested. The mystery was only cleared up when the new Parliament assembled on 13th January 1886.[188] The new Speaker had determined to reverse the policy of his predecessor in the Bradlaugh case, and the Tory Cabinet in vain sought to dissuade him. On the opening day, before any members were sworn, he informed the House that he had had two communications--one from Sir Michael Hicks Beach, and one from two other members, Mr Raikes and Sir John Kennaway, appealing to him not to let Bradlaugh take the oath. To these requests he flatly declined to accede. In the former Parliament, he pointed out, the Speaker had taken no independent authority on himself, but had always acted on the instructions of the House. "We are assembled," he went on,

[Footnote 188: This Parliament is alluded to as "of 1885" by Mr Walpole, Mr Lang, and others. It was elected in 1885, but did not assemble till 1886.]

"in a new Parliament. I know nothing of the resolutions of the past. (Cheers.) They have lapsed; they are void; they are of no effect in reference to this case. (Renewed cheers.) It is the right, the legal, statutable obligation of members, when returned to this House, to come to the table and take the oath prescribed by statute. ('Hear, hear.') I have no authority, I have no right, original or delegated, to stand between an hon. member and his taking of the oath. ('Hear, hear.') I have been further asked whether, when the House is completed, and after a quorum has been constituted, it would be competent for a motion to be made intervening between the hon. member for Northampton and his taking of the oath. I have come clearly and without hesitation to the conclusion that it would neither be my duty to prohibit the hon. gentleman from coming, nor to permit a motion to be made standing between him and his taking of the oath. (Opposition cheers.) The hon. member takes that oath under whatever risks may attach to him in a court of law. ('Hear, hear.') But it is not for me--I respectfully say it is not for the House--to enter into any inquisition--(cheers)--as to what may be the opinions of a member when he comes to the table to take the oath. I am bound, and the House is bound, by the forms of this House, and by the legal obligations and rights of members. If a member comes to this table and offers to take the oath, I know of no right whatever to intervene between him and the form, of legal and statutable obligation. (Cheers.)"

The Chancellor of the Exchequer in vain sought to make a declaration: he was called to order. Bradlaugh was duly sworn, with a Tory Ministry in nominal command of the House. The protesters against "profanation" had to stand by and see what they had defined as profanation "solemnly"--as the law courts defined solemnity--authorised by the supreme authority of the House. They had refused to permit affirmation; their oath was now, on their own declaration, outraged and trampled upon. At the same time, the whole past procedure of the House, the whole course of the last Speaker, was overruled and impeached as unwarrantable. The House had drunk its cup to the dregs.

§ 22.

The Tory press naturally solaced itself by repeating the well-tried falsehood that Bradlaugh had originally refused to take the oath, and declaring that he had now eaten his words. On 26th January, dissatisfied with that unsubstantial comfort, Mr Raikes asked the Government if they would prevent Bradlaugh from sitting and voting until he had proved his capacity to take the oath, or until the judgment of the Court of Appeal was reversed by a higher tribunal. Sir M. Hicks Beach formally replied that he was not prepared to take action, and no action of the kind was ever taken. Soon the Tories, being in the minority in the House, were turned out and the Liberals installed in their places. Appealed to to enter a _stet processus_ in the action in which Bradlaugh had appealed, they timorously declined, dreading Tory comment. But when the Tories later in the year were returned to power by the election following on Mr Gladstone's defeat on his first Home Rule Bill, and Lord Randolph Churchill became leader of the House of Commons, that versatile personage, desirous of placating if possible so formidable and so avowed an enemy as Bradlaugh, gave the relief which the Liberals had refused. Bradlaugh was thus finally secured in his seat by the capitulation of one of the most unscrupulous and offensive of his old enemies. Churchill's allusion in the House to Bradlaugh's supporters as the "scum and dregs of the nation" had elicited from Bradlaugh, in connection with his agitation against perpetual pensions, a short tractate on the manner of the founding of the Churchill family, which struck his lordship in a fashion he had not been used to at the hands of Gladstone, or even of Mr Chamberlain; and he desired to make peace. He did not obtain it.

But not only did the Tory party, as represented by its new leader in the Commons, thus give up all it had contended for: it was finally to make personal submission to the man it had wronged. The Affirmation Bill introduced by Mr Serjeant Simon never reached a debate; and it was left to Bradlaugh to carry one on his own initiative in 1888, by the votes of the men, Tory and Parnellite, who had defeated former Bills. Last of all, it was in the same Tory House of Commons, while Bradlaugh lay dying, that there was carried the resolution he had repeatedly put down, expunging from the journals of the House the old votes for his exclusion, even as the resolutions against Wilkes had been expunged. If the act was one of repentance, it the more certainly implied an infamous wrong done.

There were certainly many reasons why the Tory party should repent. They had "struck for themselves an evil blow," though the sudden rising of the Home Rule issue served to obscure the consequences of their course in the Northampton struggle. It was impossible that as a party they could have gained in credit by it either among the masses or among thoughtful and earnest men. Nothing was more notorious than that nine-tenths of the leading Bradlaugh-baiters were the least worthy men in the House. Wolff, described by Bradlaugh as a noted retailer of _choses grivoises_; Churchill, the noisy and reckless charlatan of the new Toryism, "the Demosthenes of bad taste and vulgar vehemence;"[189] Tyler, the company-promoter, hooted by the shareholders he had impoverished; "O'Donnell," the turncoat; Callan, the drunken; Newdegate, besotted with more fumes than those of fanaticism; Fowler and Warton, the gross and blatant; Healy, the ever-rowdy--these could not gain good repute from alliance with types like Mr Samuel Morley, and could not be made respectable by the leadership of Northcote, whom they hustled and humiliated. It is not possible to say with entire certainty what had been the general view of Beaconsfield on the case while he lived; but it is difficult to believe that he could have taken any satisfaction in seeing the most prominent function of the new Toryism made out to be the rowdy resistance to the sitting of a freethinking member, and the insolent refusal of a constituency's rights.

[Footnote 189: Byron's description of a better man.]

There can be no doubt, I think, that one effect of the whole episode was to create a new and widespread intensity of antagonism to the prevailing religion and to the Conservative cause. Men who had before regarded Christianity with indifference or disfavour or contempt, as a delusion, began to detest it as a living fountain of injustice; and men who had seen in recent Conservatism a policy of diverting the people's attention from home needs by foreign adventure, now saw in it a great machinery for working iniquity within the State. The party which had been seen making gun-wadding of the decalogue in its wars of aggression had now made a crass Semitic Theism the pretext for a dastardly effort to crush one man, partly by way of embarrassing the opposite side; and the party which denounced "disloyalty" took sides with the disloyalists to the same end. Of course, the heat of the immediate struggle did not last on one side any more than on the other; above all, it did not last with Bradlaugh himself; but it is certain that thousands of Freethinkers date their conversion from the time of Bradlaugh's fight with the bigots; and I fancy there are still many who preserve the impression they then gained of what Voltaire meant by "the infamous," and the purpose they then formed to make war on it throughout their lives. As regards Toryism, too, though "each day brings its petty dust, our soon-choked souls to fill," the adherents of that cause may rely on it that for many a citizen, for many a day to come, their declarations of concern for justice and right, in any case whatever, are made derisory by memories of their five-year-long course of gleeful injustice to the Atheist. Time brings its revenges. If Liberals in mass have deserved ten years of frustration, in an effort to do right, by their former treatment of Ireland, Tories in turn have wrought for the cup of defeat they have tasted, and are yet to drain to the dregs. And the Irishmen who, claiming freedom for themselves, shamelessly withheld from another even the rights they already enjoyed--they, too, have paid and are paying for their misdeeds, despite their avowed repentance.