§8.
Meanwhile the litigation forced upon Bradlaugh by the policy of the Government was proceeding, heaping up debt and preparing disaster. After some distant skirmishing on points of form, the action of Clarke came on in the Court of Queen's Bench on 7th March 1881, before Mr Justice Mathew (a Roman Catholic) who, being newly appointed, was only that morning "sworn in." When the case was called, the junior counsel for the prosecution applied for an adjournment on the score that his leader, Sir Hardinge Giffard, was absent, and he, the junior, did not feel able to argue the case. Bradlaugh curtly explained that "Sir Hardinge Giffard has on more than one occasion refused to consult my convenience," and declined to agree to the adjournment. Giffard then appeared. Stripped of minutiæ as to demurrers and cross-demurrers, the arguments were:—
For the plaintiff: That the defendant was not in law entitled to make affirmation of allegiance as he had done, the laws permitting such affirmation having been "intended" to cover only persons holding religious beliefs—i.e. beliefs as to a Deity and a future state.
For the defendant: That the Parliamentary Oaths Act of 1866 expressly provided that every person "for the time being by law permitted to make a solemn affirmation or declaration instead of taking an oath," should be entitled to make affirmation in Parliamentary matters; that the Evidence Amendment Act of 1869 enabled any unbeliever to give evidence in any court of justice on the presiding judge being satisfied that an oath would not be binding on his conscience; that the further amending Act of 1870 defined the term "judge" as covering any persons legally authorised to administer oaths for the taking of evidence; and that the Speaker was so authorised. Therefore defendant was entitled to affirm allegiance. "I contend," said Bradlaugh, "that all enabling clauses in statutes must be interpreted liberally, not restrictively, in favour of the person claiming the benefit, and not harshly against him."
The one technical weakness of the case was that nowhere had the legislature explicitly said that persons with no religious belief should be free to make affirmation of allegiance; though to found on this omission would be to assume that the legislature, while thinking the oath could advantageously (for that was avowed in the preambles) be dispensed with in the taking of evidence, thought it could not be dispensed with in the formality preceding entrance into Parliament.
On that point, however, Mr Justice Mathew founded his judgement, which was delivered on 11th March. The Evidence Acts, he decided, were clearly "intended to remove restrictions upon the admissibility of witnesses with a view of promoting the discovery of the truth," and "had no other object." The Acts of 1866 and 1869-70 must not be read together, because the legislature could not be supposed to have "intended" them to be so read. To this argument—one of the two mutually exclusive methods of interpretation of law which judges employ at their choice—Mr Justice Mathew added a pointed comment on one of the defendant's arguments. Bradlaugh, he said, had "attempted to show that the privilege of sitting in either House of Parliament was analogous to the 'privilege' of giving evidence in a court of justice." On which his lordship absurdly remarked that "no one who was free to choose his words and had a preference for accuracy of expression would speak of the discharge of the all-important and anxious duty of a witness as a privilege." It plainly follows on this, either that the work of a member of Parliament is not an "all-important and anxious duty," or that it is not a privilege. The first alternative is absurd; the other quashes the judge's argument. Further, it is the historical fact that Bradlaugh and other Freethinkers had regarded the power of giving evidence in court as a privilege, and had so described it. It may suffice to give these grounds, for the view of many of us is that the decision was unjust. But neither at this nor at any other time was Bradlaugh known even in private to question a judge's fairness. His loyalty to the established system of "justice" was absolute.
Judgment being given for Clarke, Bradlaugh applied for a stay of execution (as to the costs), with a view to an appeal; and the judge assented. On 14th March, when Bradlaugh was rising in the House to present a petition, Mr Gorst interposed with the objection that his seat was now vacant, and took occasion to assert that to his knowledge no notice of appeal had been given in the case. A discussion ensued, in which Mr Labouchere read a letter from Mr Bradlaugh to him, telling that he had instructed his solicitor to give the formal notice of appeal, and would prosecute it without delay, and offering to vacate his seat, if thought fit, to save time. Lord Randolph Churchill suggested that they had "no security" that the appeal would be made till nearly the end of the statutory twelve months. The point being dropped, Bradlaugh on 23rd March moved the Court of Appeal to expedite the hearing. As the appeal was "from an interlocutory order, and not from a final decision,"[150] it could be taken promptly, and on 30th March it was heard before Lords Justices Bramwell, Baggallay, and Lush. Bradlaugh began by arguing that Clarke was not legally entitled to sue, the Act founded on by him having been repealed by another which did not re-enact permission to anybody to sue. Going over the other ground afresh, he argued that the Act of 1866 made no exclusion of any class of persons whatever; and that the legislature ought therefore to be held as having desired to enable every class of citizens—an argument much more cogent, to the lay sense, than the contrary inference drawn by Justice Mathew. The arguments were long and intricate on both sides; and one of Bradlaugh's remarks in his closing address shows to what length of speculativeness they sometimes went: "The learned counsel said the word 'solemnly' could not mean 'sincerely,' because there was already the word 'sincerely' in the declaration. By the same process of reasoning the word 'sincerely' cannot be construed to mean 'truly' because there is also the word 'truly' in the affirmation. I think it is better to confine ourselves to law, and not go into philology." Towards the close, on a question as to whether their lordships' judgment was to be judicial or extra-judicial on both points raised, Bradlaugh remarked, "The House of Commons has been very generous in its treatment of me, and I am anxious to reciprocate that generosity," adding a hope that their lordships would not think he was pressing his point unduly. "If you will allow me to say so," replied Lord Justice Lush, "you have argued the case with great propriety as well as great force." But the judgment (delivered on 31st March) was again hostile, being to the effect that Clarke was entitled to sue, and that Bradlaugh was not entitled to make the Parliamentary affirmation. The reason given by Lord Bramwell, the presiding judge, was that the Parliamentary Oaths Act of 1866 would only permit affirmation to persons already entitled, like the Quakers, to make affirmation "not on particular occasions but on all occasions when they would otherwise have to take an oath." Unbelievers not being thus already entitled (having only the right to affirm as witnesses), Bradlaugh was not entitled to affirm by the Act of 1866, read in connection with others which did not give a complete qualification. That is to say, as I understand him, Lord Bramwell argued that the Act of 1866 was meant to give the right of affirmation in a particular case to persons who already had it in all possible cases. It sounds sufficiently absurd, and I may have failed to follow the reasoning; but I can arrive at no other interpretation of his words as published. Lords Justices Baggallay and Lush concurred. The latter put it that the "every other person" in the Act of 1866 "must mean every other person in a like position with Quakers," that is, persons having "a perfect immunity from taking the oath in all places and on all occasions." "Therefore I feel no doubt whatever that the true construction of this sentence is that Parliament never intended to allow every person whomsoever when elected to appear before the House of Commons, and on stating that he had a conscientious objection to the oath, being permitted to make affirmation." Nobody, as it happened, had ever said so. But Lord Justice Lush's confident conclusion as to the intentions of Parliament involves this: That Parliament, knowing there were Atheist members, deliberately chose to have them take the oath, rather than let them make affirmation. To this outrageous conclusion all these judges are shut up; for there is not a word in any of the Acts about excluding Atheists; and if the "intentions" of the legislature are to be looked for—thus argued Sir Hardinge Giffard in this very case—"the language must be clear and unequivocal." So say we all. But the judges expressly inferred exclusive intentions from the mere absence of special detail in the inclusive language. They would not infer friendly intention from friendly language; but they would infer hostile intention from no language at all.
Bradlaugh's seat was now vacant in law; and he at once stood for re-election. All along the great majority of his constituents had stood by him cordially and courageously. A series of crowded public meetings, some addressed by himself and Mr Labouchere, some by leading local politicians, protested against the injustice done to member and constituency at each new stage of the process of exclusion, and now that the constituency was called upon to express its feeling at the polls it effectively responded. A certain number, of course, were detached from Bradlaugh by the storm of obloquy which beat upon him, and this the more readily because they had accepted the joint candidature with reluctance; but the great majority stood staunch, despite desperate efforts to turn them. As Bradlaugh told at the time, the constituency was flooded with pamphlets containing
"not only what I have said and what I have written, taken out of its context and distorted, but containing things I have never said and have never written, and never dreamt of saying or writing. Books that I have neither written nor published, but which were supposed to be obnoxious, have had extracts taken out from their medical parts and circulated, and the physiological part of the Knowlton pamphlet, for which I was indicted, was taken separately and sent by post to each of the electors. The vilest things have been said. Some of my foes have been more foul than even I had thought possible."
The dirty work was largely done by a person named Varley, known as "a tradesman of Notting Hill." Further, a notice was served on the electors assuring them that Bradlaugh had vacated his seat "as if he were dead"; and on the comedy side of the contest the Conservative candidate, whose name figured on his bills in the alliteration "Corbett and Christianity," fortified his position in his electoral address by the appeal: "I am intimately connected with a family in your own county (that of Sir Charles Isham), which is well known to you, and members of which have at former periods had the honour of representing their native county in Parliament."