He then proceeded to satisfy all conventions by swearing (affidavits could not then be affirmed) that Mr Prentice did not consider him competent to give evidence on oath, nor himself competent to receive the evidence on affirmation. Mr Bradlaugh returned two days later to the Court of Common Pleas and asked that "Mr Prentice be directed to take the evidence of Mr Charles Bradlaugh on the fact to be stated in a special case." After a very long argument the Court decided that it had no power to give directions to an arbitrator.
Although no more advanced than when he first brought his action in the winter of 1867, Mr Bradlaugh did not even yet despair, but determined to carry his case to the highest possible legal tribunal. Pending the final decision of the law, petitions were got up all over the country and sent into Parliament, praying for a further amendment of the Act.
On the 7th of February the case was mentioned at the Sittings in Error; but although there were seven judges present, Lord Chief Baron Kelly refused to proceed with it in the absence of the Lord Chief Justice. He said that the case was one "of the greatest possible importance, not only in this country, but throughout all Europe; it was therefore of importance that the Court should be so constituted as to insure general satisfaction with its decision. The Lord Chief Justice Cockburn had been present when an argument on part of the case had been heard; it would be advisable, therefore, that the case should stand over until the Sittings in Error after the next term."
In consequence of this, it was not until the 16th of May that the long-drawn-out proceedings in this suit—involving at the outset a simple business transaction, but now including far wider issues—entered upon their final stage. For more than two years justice had been persistently perverted from its course, and used as the tool of fraud, but now at length matters wore a different aspect. The case was heard in the Court of Exchequer Chamber, before Lord Chief Justice Cockburn, Lord Chief Baron Kelly, Justices Blackburn, Mellor, and Lush, and Barons Channell and Cleasby. The Court was unanimous in its decision that the endorsee was entitled to sue, and that the verdict must be entered for Mr Bradlaugh. The Lord Chief Justice remarked that the defendant had no merits at all in the case; he had relied upon this "somewhat unrighteous" defence, and the judgment now given was "in accordance with the good sense and justice and equity in the case."
So, in the end, my father won his suit, but the victory was very costly. The judgment of the Court of Exchequer did not entitle him to recover any of the expenses he had incurred in fighting the oath question. Upon that point the decision of the Court of Common Pleas was final. In a public statement made at the end of the year at Bristol, in reply to some observations which had fallen from Professor Newman, Mr Bradlaugh remarked that in contesting the oath question in the law courts he had himself lost £1500. This was an allusion to his losses in the De Rin case, the costs in which alone reached to more than £1100; in addition to these enormous costs, he lost his debt of £360 because the Christian De Rin, who objected to the evidence of an Atheist, became bankrupt when the case was finally decided.
Before the passing of the Evidence Amendment Act in 1869 all persons who disbelieved in God or in a future state of rewards and punishments were held to be incompetent to give evidence in a Court of Law. Freethinkers had long and bitterly felt the injustice and hardship of their position; and in 1868 and 1869, after the first action in the case of Bradlaugh and De Rin, a most determined effort was made to move Parliament to amend the law of evidence. The National Secular Society sent in petitions to the House of Commons, and the Executive of that Society put itself in communication with members of both Houses. Mr Bradlaugh said in 1870 that they tried "to pass a much more distinct clause in favour of Freethinkers than the one as it now stands, which is in its legal effect entirely different from the clause as originally drawn by the Hon. Mr Denman, and printed in the Bill first read before the Commons. It is Lord Cairns to whom we were ultimately indebted for the main words which really serve us in the Act of 1869."
In 1870 another Bill, prepared by the Hon. G. Denman and Mr Locke King, was passed through Parliament to further amend the law of evidence, but it only met such difficulties as had arisen in the case of Bradlaugh and De Rin, and did not touch the law as it related to jurymen, affidavits, or Scotland. Mr Bradlaugh was continually urging members of the House to get these points amended, but nothing further was done until he himself carried his Oaths Act of 1888, by which the whole law relating to oaths was radically altered.
Until the passing of this Act, jurors without religious belief were liable to be committed to prison if they refused to be sworn, and the law did not permit them to affirm. Affidavits on interlocutory proceedings could only be made upon oath. In Scotland all Atheists and disbelievers in eternal torment were, in addition, incompetent as witnesses.
In any case, too much discretion was left to the Judge, who was supposed to satisfy himself, according to the monstrous formula laid down by the Act, that the oath would have "no binding effect" upon the conscience of a heretical witness. A promise is binding upon the conscience of an honest man in whatever form it may be made, and it put Freethinkers in an entirely false position to be obliged to assent to the statement that some particular form was not binding upon them. Conscientious witnesses who wished to affirm hardly knew what to answer when the Judge put the question to them, and he would not always be satisfied with the mere statement that the oath gave no additionally binding effect to the promise. And sometimes his assent to the formula would be used to the discredit of a witness. I myself once heard Baron Huddleston tell the jury that it was for them to consider what was the value of the evidence of a witness whom an oath would not bind.