« PreviousContinue »
institution like the House of Lords is necessarily great ; its possibility rests on continuous caste and ancient deference. And if you begin to agitate about it, to bawl at meetings about it, that deference is gone, its peculiar charm lost, its reserved sanctity gone. But, by an odd fatality, there was in the recesses of the Constitution an old prerogative which would have rendered agitation needless—which would have effected, without agitation, all that agitation could have effected. Lord Palmerston was—now that he is dead, and his memory can be calmly viewed—as firm a friend to an aristocracy, as thorough an aristoctat, as any in England; yet he proposed to use that power. If the House of Lords had still been under the rule of the Duke of Wellington, perhaps they would have acquiesced. The Duke would not indeed have reflected on all the considerations which a philosophic statesman would have set out before him; but he would have been brought right by one of his peculiarities. He disliked, above all things, to oppose the Crown. At a great crisis, at the crisis of the Corn Laws, what he considered was not what other people were thinking of, the economical issue under discussion, the welfare of the country hanging in the balance, but the Queen's ease. He thought the Crown so superior a part in the Constitution, that, even on vital occasions, he looked solely—or said he looked solely—to the momentary comfort of the present sovereign. He never was comfortable in opposing a conspicuous act of the Crown. It is very likely that, if the Duke had still been the President of the House of Lords, they would have permitted the Crown to prevail in its well-chosen scheme. But the Duke was dead, and his authority—or some of it
—had fallen to a very different person. Lord Lyndhurst had many great qualities; he had a splendid intellectas great a faculty of finding truth as any one in his generation ; but he had no love of truth. With this great faculty of finding truth, he was a believer in error-in what his own party now admit to be error-all his life through. He could have found the truth as a statesman just as he found it when a judge ; but he never did find it. He never looked for it. He was a great partisan, and he applied a capacity of argument, and a faculty of intellectual argument rarely equalled, to support the tenets of his party. The proposal to create life-peers was proposed by the antagonistic party—was at the moment likely to injure his own party. To him this was a great opportunity. The speech he delivered on that occasion lives in the memory of those who heard it. His eyes did not at that time let him read, so he repeated by memory, and quite accurately, all the black-letter authorities bearing on the question. So great an intellectual effort has rarely been seen in an English assembly. But the result was deplorable. Not by means of his black-letter authorities, but by means of his recognised authority and his vivid impression, he induced the House of Lords to reject the proposition of the Government. Lord Lyndhurst said the Crown could not now create life-peers, and so there are no life-peers. The House of Lords rejected the inestimable, the unprecedented opportunity of being tacitly reformed. Such a chance does not come twice. The life-peers who would have been then introduced would have been among
the first men in the country. Lord Macaulay was to have been among the first; Lord Wensleydale—the most learned and not the least logical of our lawyers—to be the very first. Thirty or forty such men, added judiciously and sparingly as years went on, would have given to the House of Lords the very element which, as a criticising Chamber, it needs so much. It would have given it critics. The most accomplished men in each department might then, without irrelevant considerations of family and of fortune, have been added to the Chamber of Review. The very element which was wanted to the House of Lords was, as it were, by a constitutional providence, offered to the House of Lords, and they refused it. By what species of effort that error can be repaired, I cannot tell ; but, unless it is repaired, the intellectual capacity can never be what it would have been, will never be what it ought to be, will never be sufficient for its work.
Another reform ought to have accompanied the creation of life-peers. Proxies ought to have been abolished. Some time or other the slack attendance of the House of Lords will destroy the House of Lords. There are occasions in which appearances are realities, and this is one of them. The House of Lords on most days looks so unlike what it ought to be, that most people will not believe it is what it ought to be. The attendance of considerate peers will, for obvious reasons, be larger when it can no longer be overpowered by the non-attendance, by the commissioned votes of inconsiderate peers. The abolition of proxies would have made the House of Lords a real
House; the addition of life-peers would have made it a good House.
The greater of these changes would have most materially aided the House of Lords in the performance of its subsidiary functions. It always perhaps happens in a great nation, that certain bodies of sensible men posted prominently in its constitution, acquire functions, and usefully exercise functions, which, at the outset, no one expected from them, and which do not identify themselves with their original design. This has happened to the House of Lords especially. The most obvious instance is the judicial function. This is a function which no theorist would assign to a second chamber in a new constitution, and which is matter of accident in ours. Gradually, indeed, the unfitness of the second chamber for judicial functions has made itself felt. Under our present arrangements this function is not intrusted to the House of Lords, but to a Committee of the House of Lords. On one occasion only, the trial of O'Connell, the whole House, or some few in the whole House, wished to vote, and they were told they could not, or they would destroy the judicial prerogative. No one, indeed, would venture really to place the judicial function in the chance majorities of a fluctuating assembly: it is so by a sleepy theory; it is not so in living fact. As a legal question, too, it is a matter of grave doubt whether there ought to be two supreme courts in this country—the Judicial Committee of the Privy Council, and (what is in fact though not in name) the Judicial Committee of the House of Lords. Up to a very
recent time one committee might decide that a man was sane as to money, and the other committee might decide that he was insane as to land. This absurdity has been cured; but the error from which it arose has not been cured—the error of having two supreme courts, to both of which, as time goes on, the same question is sure often enough to be submitted, and each of which is sure every now and then to decide it differently. I do not reckon the judicial function of the House of Lords as one of its true subsidiary functions, first because it does not in fact exercise it, next because I wish to see it in appearance deprived of it. The supreme court of the English people ought to be a great conspicuous tribunal, ought to rule all other courts, ought to have no competitor, ought to bring our law into unity, ought not to be hidden beneath the robes of a legislative assembly..
The real subsidiary functions of the House of Lords are, unlike its judicial functions, very analogous to its substantial nature. The first is the faculty of criticising the executive. An assembly in which the mass of the members have nothing to lose, where most have nothing to gain, where every one has a social position firmly fixed, where no one has a constituency, where hardly any one cares for the minister of the day, is the very assembly in which to look for, from which to expect, independent criticism. And in matter of fact, we find it. The criticism of the acts of late administrations by Lord Grey has been admirable. But such criticism, to have its full value, should be many-sided. Every man of great ability puts his own mark on his own criticism; it will be full of