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]

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 manœuvred 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,

"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.