90. The Committee will now proceed to examine you.—Before any question is put to me, will you, Sir, tell me when is the proper time to object to any question which I may think I have the right to object to?
91. When the question is put, before answering it?—
Mr. Attorney General: You will understand that I am not in any sense cross-examining you, but merely to clear up what took place in the House.
I am entirely in the hands of the Committee.
92. We know from the Proceedings of the House that you did at the table of the House make a claim, in the first instance, to make affirmation instead of taking the oath?—Yes.
93. And we understand that you did so on the ground that you were a person entitled to make affirmation within the terms of the Evidence Amendment Acts of 1869 and 1870?—That was then my impression of the law, and that was the claim which I made.
94. And I presume, of course, that at the time when you made that claim you founded it upon the belief that you were entitled to make affirmation in the House of Commons?—I made that claim solely upon my belief that the law entitled me to make it.
95. Then as regards your power to give evidence under the Evidence Amendment Acts in courts both civil and criminal, you of course put it before the House of Commons, as a fact, that you were a person entitled in those courts to make affirmation?—Yes.
96. And I presume that you were acquainted with the terms of those Acts, the subject interesting you?—Quite.
97. Were you aware that if you yourself were called as a witness, it would be necessary before you were allowed to make affirmation in a court, either civil or criminal, under the Acts of 1869 and 1870, that two things should be established; first, that you yourself objected to take the oath, or that your right to take it was objected to by some one else; and then, secondly, that the judge would be required to satisfy himself that the taking of an oath by you would have no binding effect upon your conscience?—No, that is not my interpretation of the Statute, nor do I think it has always been (although I think it has sometimes been) the interpretation of the judge or other presiding officer dealing with it.
98. Would you kindly explain your own view as to the sense in which you read the statute of 1869, which says that the judge must satisfy himself that the oath is not binding upon the conscience of the person wishing to affirm, the words being, “If any person called to give evidence in any court of justice, whether in a civil or criminal proceeding, shall object to take an oath, or shall be objected to as incompetent to take an oath, such person shall, if the presiding judge is satisfied that an oath would have no binding effect on his conscience, make the following promise and declaration”?—My interpretation is that upon certain answers being given by the witness, the judge is bound to take his affirmation, even supposing that the judge himself should not be of opinion that the oath is not binding upon him; and it has been decided so by the Court of Queen’s Bench. In the case of ex parte Lennard v. Woolrych, a man tendered his affirmation at the Westminster Police Court, and the magistrate asked him (I am repeating from memory, but repeating perfectly accurately the substance of what appears in the affidavits filed in the Court of Queen’s Bench), “Why do you object?” He said, “I am an Atheist.” The magistrate refused to allow him to give evidence upon affirmation, and the court held that upon hearing that answer there was enough under the Act, and that the magistrate was bound to take the man’s evidence, and issued a mandamus to compel him.