The House of Lords and the nation

Front matter

THE

HOUSE OF LORDS

AND

Preface

PREFACE.

BY THE EARL OF CARNARVON.

I have been requested to write a few words of introduction to the following pamphlet on the House of Lords; and it is an agreeable task to bear witness to its singularly fair and truthful reasoning. There is nothing from which I materially differ, there is very much in which I cordially agree. In its moderate and argumentative style, in its complete freedom from personal abuse, unfair attack, or exaggerated statement, it presents a remarkable contrast to articles and papers which have lately been written against the House of Lords, and which, by their injustice and violence, seem to drag us back into the worst political literature of the last century.

I heartily and sincerely recommend it to the careful reading of those who desire to know the facts of a case that has been grossly misrepresented. They will find in it nothing, I believe, that is not consistent with fact, and that has not the warrant of History.

With prejudiced partisans I have no concern; but to conscientious and reasonable men, who desire to be satisfied as to the rights of the question, I would say, "Test the allegations of Radical speakers and pamphleteers by the certain facts of History, and study these facts not in the pages of Tory writers but in the deliberate conclusions of Liberal Historians, where there can be no suspicion of favour or partiality towards the House of Lords." Is it possible to make a fairer proposal? And if indeed the offer be accepted and the question studied from this point of view—of course I mean broadly and fairly, not picking out exceptional sentences or facts, or divorcing the general meaning of the writer from the context—it will, I think, be admitted that the reasoning of this pamphlet is amply and abundantly confirmed.

Errors of judgment, intemperate conduct, perhaps even selfish action may occasionally be traced in the parliamentary history of the House of Lords; but what body of men has there ever been, or will there be, of which this cannot be said? Unworthy members, rotten limbs which I wish we could cut off, there have been and must be, but what body of men has there ever been, or will there be, of which this cannot be said? Let him or they who are immaculate cast the first stone. If, indeed, individual cases are to be cited, it would be easy to name by the score those in the House of Lords who have with pre-eminent ability guided legislation and upheld public affairs, or, on the other hand, who have simply and conscientiously made their wealth and abilities the source of comfort and happiness to thousands who depended upon them. I believe that if, like reasonable men, and not like children, carried away by every breath of rhetoric, we look dispassionately at the whole course and conduct of the House of Lords for many generations back, the verdict will be that that House has shown often more liberality, very often more wisdom than, and always as much patriotism as the House of Commons.

The revolution of 1668 was as much due to the English aristocracy and the House of Lords as to any man or men in the country. In the early part of the 18th century it was the House of Lords which threw its shield of protection over Lord Somers, Sir Robert Walpole, and, on more than one occasion, over the Dissenters too, though it may now suit Radical politicians to ignore this. It was the House of Lords that maintained the House of Hanover, and upheld the Protestant succession. These were great events; and compared with them the events and legislation of our day will seem in the eyes of a future historian to be insignificant and petty. Again, as we consider the parliamentary history of the close of the 18th century, it is neither demagogues nor members of the House of Commons, but great Peers that withstood the arbitrary power of the Crown, or opposed Lord Bute and the corruption of Henry Fox. The Dukes of Richmond and Devonshire, Lord Fitzwilliam, and others, were at one time the mainstay and representatives of public liberty, and the bulwark against an overweening court and a servile minister. Go on yet one step further, to that great war when a Liberal Opposition thwarted the military conduct of the Duke of Wellington, and did their best to starve the British army abroad; and it was the House of Lords that never flinched when the honour, credit, and safety of the country were at stake. And on the conclusion of that great struggle it will not be found that the aristocratic government of England were the friends of tyranny abroad. On the contrary, their support was given to the constitutional Governments that were growing up in Europe. Misrepresentation and abuse have been heaped upon Lord Castlereagh, but modern history has brought out the fact that he was no friend to tyranny. Nor must it be forgotten that, at the end of the great war, it was that same aristocratic government that restored Sicily to the Italians, Java to the Dutch, that defended Holland under critical circumstances, and did its best, though unsuccessfully, to save Poland. It was finally no demagogue who carried the famous Reform Bill of 1832. It was an aristocratic government, at the head of which was one, than whom no greater aristocrat breathed—Lord Grey.

There are, I think, four undeniable facts which may be asserted of the House of Lords during the last half century. First, a steady growth and adaptation of the House to the social and political changes of the time may be traced. It reflects, indeed, our essentially English practice in silently and unconstrainedly adapting itself to the requirements of the day. It has thus interwoven itself, as it were, with English sentiment, and had become an integral part of the English nation. Secondly, by the general opinion of the country, and on the authority of distinguished Liberals, it may challenge, for ability in debate and for business power, comparison with the House of Commons. Thirdly, it remains a firm bulwark of the Crown; and, whilst a bulwark—thanks to its hereditary character—it has maintained its independence of the Crown. Fourthly, and lastly, taking all circumstances into account, there has been a remarkable and extraordinary harmony between the House of Lords and the House of Commons.

Let me only add that all this can be proved, not from the pages of Conservative writers, but from the careful conclusions of Liberal historians. I might pursue this reasoning further, and point out how untrue it is to represent the House of Lords as a mere Conservative assembly. Up to the reign of George III. the House of Lords was Whig; but with the French Revolution it changed—and why? Because it reflected the character and temper of the whole nation. At that time the whole nation was Tory. It was alarmed by the atrocities of the French Revolution, and the House of Lords reflected faithfully the temper of the nation. But after the Reform Bill of 1832, parties in the House of Lords gradually became more evenly balanced—so evenly balanced, indeed, that during the time Lord Palmerston was Prime Minister it was hard to say that the Conservative Opposition was stronger than the Liberal Government. When a vote of censure was moved by the late Lord Derby, on the occasion of the Chinese war, the Conservative Opposition were beaten by 37 votes. But, if the House of Lords is Conservative now, the reason is plain. It is the present Government that has alarmed the House, and has driven over from the Liberal to the Conservative side men who, from father to son, have been Liberal. It is that the House of Lords is reflecting now, as it did at the French Revolution, the education, the sense, the respectability, the good feeling, the intelligence of the country.

But it is objected that the House of Lords is founded on the principle of hereditary descent, and that that principle is inconsistent with the ideas of our day. Inconsistent with the ideas of our day! It might as well be said inconsistent with the moving principles of human nature; for it is in that hereditary principle that the appeal to many of men's highest instincts lies. A man toils not for himself, but for his son; for him he spends his life, and strength, and energy, as on him he pours out his affections; and the son, in his turn, when he succeeds to his father's place, succeeds not to his wealth and property alone, but to that which is the best part of his inheritance, to his fair fame and credit. That fair fame is the pledge of his future conduct and the earnest of good service to the State. It may be said, in Lord Bacon's words, that the Peers, if true to themselves and their duties, are "thrice servants—servants of the Sovereign or State, servants of fame, and servants of business."

But it is also on this hereditary principle that the independence of the House of Lords is founded. Take it away, and I know not what substitute can be found. Nomination? It has been repeatedly tried in our Colonies, but no colonial statesman would recommend it, except as the next best substitute for our English system, which is of course impossible there. Election? It has also been tried and it has been found even less satisfactory in its operation than nomination. A constitution analogous to that of the Senate of the United States? It is admitted that the materials do not exist in this country.

Whilst, then, I say now, as I have often said before, that I would refuse consideration to no wise or well considered proposal which would give strength or greater efficiency to our second chamber, it needs little knowledge of human nature, of History or statesmanship, to understand that they, who lightly discard the principle of hereditary descent, may find that they have cast aside that which even under the freest and most popular institutions may have a value little dreamed of by modern Liberals. Surrounded by the traditions of historic antiquity—no small merit in days of change—it maintains a visible connection between past and present England; and it adds dignity to an ancient monarchy, stability to the forms and substance of government, and a silent, but not ineffective protest against those less generous influences which are ever striving to assert themselves in a money making and money worshipping generation.

CARNARVON.

August 20th, 1884.

The House of Lords and the nation

THE HOUSE OF LORDS & THE NATION.

The recent action of the majority of the Peers, in declining to read the Franchise Bill a second time while the Government Redistribution scheme remains altogether undisclosed, has been made the occasion of an outcry against the present constitution and powers of the House of Lords. Some of those who join in it clamour for the total abolition of the House, while others are content to insist on its thorough reform, and on a considerable curtailment of its powers. It is not the first occasion in our history that this outcry has been heard. As is well known, the last time that it was seriously raised was during the agitation which preceded the passing of the Reform Bill of 1832. There is a singular contrast between the circumstances of that epoch and those of the present day. Then it was the party of reform who pressed upon the Peers "the Bill, the whole Bill, and nothing but the Bill." Now it is the Peers, who, in requiring that the plan for the extension of the franchise shall be accompanied by the scheme for the redistribution of seats, are insisting on the measure, the whole measure, and nothing but the measure. On the other hand, the motto of the Government policy is in fact, at present, "the part, the little part, and nothing but the part."

It is not difficult to decide on which side lie right and reason. We need only refer to the words uttered five-and-twenty years ago by that great authority on the subject of reform, Mr. John Bright, when he laid it down as a maxim of universal application, that it is the duty of Englishmen to repudiate without mercy any Bill of any Government, whatever its franchise, whatever its seeming concessions may be, if it does not contain provisions for a redistribution of seats.

But the political power of the Peers had been assailed before the present century. In January, 1649, the House of Commons passed a resolution that the House of Peers was useless, dangerous, and ought to be abolished; and in the spring of that year, within four months after King Charles I. had been brought to the scaffold, an ordinance was passed (which twelve years later was unanimously condemned as utterly unconstitutional and illegal) to the effect that England should be governed as a Commonwealth by the representatives of the people in Parliament, without any King or House of Lords.

Let those who conceive that a similar measure at the present day would be advantageous to the country, consult history as to what was the result of that proceeding two hundred and fifty years ago. "Was the authority of the House of Commons increased by the proceeding? Was the country benefited by it? Scarcely had four years elapsed from the time of its taking place, when he, who had been the ruling spirit in accomplishing the overthrow of the Upper House, found it expedient to do away with the Lower House also. The power of the Commons, instead of being augmented by its release from the check of a co-ordinate assembly, had become absolutely effete. The House, which not many years before had resented the intrusion of the King into its debates as an unwarrantable breach of its privileges, tamely submitted while Oliver Cromwell, with an armed force, interrupted its proceedings. We all remember how he ordered the removal of the Speaker's mace (which, through the degeneracy of the House, had, in fact, become what he designated it, a mere "bauble"), how he ejected the members, and locked the doors. After this Cromwell made one or two further attempts to govern the country with a House of Commons alone. But success did not attend the experiment. He had recourse a second time to a body of soldiers to disperse the country's legislators; and the newly elected House, which met in 1654, was allowed so little freedom that every member was stopped at the door by an armed guard and refused admission until he had subscribed a declaration that he would not vote for any alteration in the government. When another election took place in 1657, upwards of a hundred of the representatives returned by the constituencies were regarded by Cromwell as disaffected towards himself, and were prohibited by him from taking their seats. It is instructive to notice that so convinced did he at last become of the impracticability of carrying on the government with one House, that shortly before his death he revived, after a fashion, the Upper House, limiting, however, its members to a few of his own adherents. Meanwhile the country had become thoroughly disgusted with the condition to which it had been brought by the overthrow of the ancient Constitution, and was weary of the military despotism which had followed the abolition of the monarchy and the suppression of the House of Lords. As those two disastrous measures had been adopted at the same time, so the reversal of them was destined to take place simultaneously.

In April, 1660, upon the meeting of a new Parliament under the auspices of General Monk, the Peers reassembled of their own accord in the House of Lords, and no opposition was made to their doing so, although the ordinance dissolving that House remained in form unrepealed. As is well known, the restoration of the monarchy followed within a few weeks, and legislation by King, Lords, and Commons, which had been suspended for ten years, was permanently resumed, to the intense relief and satisfaction of all classes of the community.

But, it may be said, it is unreasonable to conclude that because the overthrow of the House of Lords was followed by the degradation of the House of Commons in the seventeenth century it would necessarily be attended with a similar result in the present day. Possibly it might be unreasonable, if there were not actually ominous signs to be discerned, which unmistakably support that conclusion. It would be an insult to the memory of Oliver Cromwell to draw a parallel between him and our present Prime Minister. Great as were his faults, Cromwell was an undoubted statesman, under whose firm and straightforward policy the name of England was respected, her flag honoured, and her counsels received with deference throughout the civilised world. But Mr. Gladstone resembles the Protector in his impatience of any assembly which does not implicitly follow his behests. We have seen how Cromwell, after overthrowing the Upper House, proceeded to attack and overawe the House of Commons. We shall hereafter have occasion to notice three distinct blows which Mr. Gladstone during the last fifteen years has levelled at the authority of the House of Lords; and he, at the same time, makes no secret of his desire to alter the procedure and curtail the liberties of the House of Commons. Already, two years ago, we have had the Parliamentary session adjourned to the autumn for that special purpose; but Mr. Gladstone is careful, whenever the opportunity offers, to express, in replies to deputations and correspondents, his conviction that the labours then bestowed on the matter were a failure, and that the mode of conducting business in the Lower House requires to be reformed in a yet more trenchant manner.

There is an old proverb which directs us where to assign the blame when a workman complains of his tools. It would seem to apply with even greater force, if the workman continues to complain after he has attempted to mend and sharpen them. Moreover, when the workman laments that he cannot get through his job, and yet never resorts to the sharp edge which he himself forged for the purpose, the suspicion cannot help being awakened that he is purposely abstaining from using it with a view to persuade a credulous nation that he requires a yet keener weapon, with which they would be unwilling to entrust him unless they were persuaded that it was absolutely essential. Whether or not this was Mr. Gladstone's design in refraining from putting in force the clôture during the wearisome hours which were wasted on Supply by Irish Members towards the end of July and beginning of August in the present year may be a matter of conjecture. But the fact remains that, notwithstanding his own amendments of it in 1882, he has denounced the present procedure of the House of Commons no less clearly than his followers have condemned the existing powers of the House of Lords.

Of course, if the continuance of these powers is fatal to the best interests of the country, we must not be deterred from endeavouring to abolish or restrict them by the risk that we may at the same time damage the political fabric of the Lower House. But the existence of this risk is an additional reason why, before joining in the campaign against the Peers, we should pause and ask ourselves seriously and anxiously whether by doing so we should be taking a course calculated to further the welfare of the nation. The questions to be solved are two in number:—(i.) Is the maintenance of a second Legislative Chamber of any kind desirable? And (ii.) if it is, is it expedient that the present House of Lords should be continued as the Second Chamber, or should some assembly differently constituted be substituted for it? It is proposed in the following pages to discuss these questions in the order in which they have been mentioned, with a view to arriving at a sound conclusion on the whole matter.

I.— IS A SECOND LEGISLATIVE CHAMBER OF ANY KIND DESIRABLE?

There has never been any very serious difference of opinion as to the answer which should be given to this question. It is true that some closet philosophers have affirmed that the existence of a Second Chamber is unnecessary for, and even injurious to, Constitutional Government. But the common sense of mankind has preferred to be guided by experience in the matter, and has decided with tolerable unanimity in the opposite direction. In the Republics and Constitutional States of ancient Greece, among the Ionians, Æolians, and Dorians alike, at Athens, at Thebes, and at Sparta, we find during their best epochs the government divided between the Boule or Gerousia, which corresponded with the Roman Senate, and the Agora, or popular assembly. In those cases in which the Boule was in course of time overthrown by revolution, the free institutions of the State did not long survive its fall. In the palmiest days of the old Roman Republic political power was divided between the Senate and the Comitia, or assemblies of the people; and it was the weakening of the power of the Senate which opened the way for the overthrow of the Republic by the Cæsars, and for the despotism of the later Emperors. In the early barbaric stage of the Frankish and German tribes, who have ultimately developed into the modern nations of Western Europe, we do not expect to find any very matured political institutions. Before they subdued the Roman Empire, and were themselves subdued by its civilising influences, their government was of a simple and informal character. Yet we learn from the historian Tacitus that even then not only the king or the chief of the tribe, but also a council, composed of a select body of his followers, shared with the general assembly of the tribe the control over public affairs.

The general adhesion which in modern times has ultimately been given to the principle of a two-chambered legislature cannot be better described than in the words of Professor Lieber. Imprisoned in his youth, and expelled from the schools in Prussia on account of his democratic opinions, he cannot be accused of any aristocratic tendencies:—

"Although," he says, "practice alone can show the whole advantage that may be derived from the system of two Houses, it must be a striking fact to every inquirer in distant countries, that not only has the system of two Houses historically developed itself in England, but it has been adopted by the United States in all the thirty-one States, as well as the six now existing territories, and by all the British Colonies where local Legislatures exist. We may mention even the African State of Liberia. The bi-cameral system accompanies the Anglican race like the common law, while no one attempt at introducing the uni-cameral system in larger countries has succeeded. France, Spain, Naples, Portugal—in all these countries it has been tried, and everywhere it has failed. The idea of one House flows from that of the unity of power, so popular in France. The bi-cameral system is called by the advocates of democratic unity of power an aristocratic institution. This is an utter mistake. In reality, it is a truly popular principle to insist on the protection of a Legislature divided into two Houses."

Since the Professor penned these lines in his great work on "Civil Liberty and Self-Government," the bi-cameral system, as he calls it, has been further adopted in the Austrian Reichsrath, the Hungarian Diet, the Italian Parliament and the Imperial German Parliament, and in the Federal Assembly of the Dominion of Canada. The French also have wisely taken warning from the rapid fate of their First and Second Republics, to which the system of having only one Chamber no doubt largely contributed, and have in their present Third Republic constituted two Houses, a Senate and a Chamber of Deputies. It requires no small stock of credulity to believe that all the nations, beginning with the United States of America, which have thus copied the composition of our own Parliament, have been in error in doing so. And he must be a man of no little arrogance and self-conceit who presumes to set up his own opinion in favour of a single-chambered Legislature against the verdict of history and against the conclusions of Lieber, Kent, and Story, and other great American writers, and the weighty European authorities who maintain that Representative Government cannot permanently be carried on without a Second Chamber, that the bi-cameral system is an essential guarantee for the maintenance of order and liberty, and that a single legislative assembly invariably brings misery upon a State by its instability, its violence, and its impassioned temerity. It really does not appear necessary to spend further time in proving that the answer to our first question ought to be in the affirmative, and that a Second Legislative Chamber of some kind is not only desirable but essential.

Our second question is open to more difference of opinion, and requires to be considered at greater length.

3em

In order to arrive at a right decision upon this question, it behoves us to inquire into (a) the Constitution of the House, and the advantages or disadvantages which are consequent upon it; and (b) the benefit or otherwise which the House, as actually constituted, has conferred on the country during the course of our history.

(a) The Constitution of the House.

In considering the constitution of the House Lords, it is important to bear in mind that this constitution does not owe its origin to any cut-and-dried scheme or any carefully concocted design. It is the product of events, and only reached its present condition after the lapse of centuries. It possesses, in fact, that feature of natural growth, as opposed to artificial construction, which has distinguished all our institutions from those of foreign countries, and goes far to account for their superior permanency and stability. The existence in the early German tribes of select councils, as well as general tribal assemblies, has been already pointed out. When the tribes of Angles and Saxons who settled in England first formed themselves into kingdoms, their councils developed into witenagemots (assemblies of the witan, or wise men). Upon the consolidation of the Heptarchy into one kingdom, under the sovereign of Wessex, the Witenagemot of Wessex became enlarged into the Witenagemot of all England, and was composed of the lay nobles and the bishops, abbots, and priors of the realm. The Witenagemot survived the Norman Conquest, but it was thenceforth called the Great Council. The right to attend it was at first possessed by the lay and spiritual heads of the counties—the counts or earls, and the archbishops and bishops—and by such other laymen and such abbots and priors as held baronies from the Crown, and also by those tenants of the Crown who held land of less extent than a barony, but were bound to render military service in respect of it. Henry II. commenced the practice of sending special writs of summons to the individuals who were to attend the Council; and he and his successors did not confine the writs to those who, as above mentioned, had the privilege of attending, but introduced into the assembly lawyers and clerks whom it was desired to raise to judicial or administrative offices. Gradually, the receipt of a summons, and not the possession of a barony, came to be considered as conferring the right to be present, and the omission of a summons was held to debar a baron from attending. By Magna Charta, however, the King bound himself to summon all the archbishops, bishops, abbots, earls, and barons, and also the lesser tenants of the Crown. After the constitution, in the latter half of the thirteenth century, of a Lower House to represent the interests of the Commons, some of the lesser tenants of the Crown were elevated to baronies, and the rest were no longer summoned. In this way the Upper House became ultimately confined to the lay and spiritual Peers. The number of the former was not at this time large. In the last Parliament before the outbreak of the Wars of the Roses, fifty-three are recorded as having been in attendance. Their ranks were considerably thinned by those wars, and Henry VII. summoned only twenty-nine to his first Parliament. The spiritual Peers constituted at this time the majority of the House; but by the dissolution of the monasteries about thirty-six abbots and priors were withdrawn, and the bishops who remained formed about one-third of the, whole peerage. All this time, while the spiritual peerages had descended to the successive occupiers of the sees, or monastic dignities, in respect of which they had been originally conferred, the lay seats in the House of Lords had been occupied in successive generations by the owners of the baronies or estates to which they had been attached, and thus had, for the most part, descended from father to son.

About the end of Elizabeth's reign the general practice became recognised as a rule, and the receipt of a writ of summons to the Upper House was held to confer a hereditary peerage, independently of the question whether the son retained his ancestral estate. Moreover, in 1626, it was laid down as a fundamental principle, that every Peer of full age is entitled to his writ of summons at the beginning of a Parliament, and that the House will not proceed with business if any Peer is denied it. Since that time the alterations in the constitution of the House of Lords have been five in number, (i.) By the Act of Union with Scotland in 1706 there were added to it sixteen representative Peers for that country, to be chosen at the commencement of each Parliament by the Scottish Peers, (ii.) The Act of Union with Ireland in 1801 made a further addition of twenty-eight representatives of the Irish peerage. These, however, are chosen for life, (iii.) Since the beginning of George III.'s reign, the number of lay Peers has been more than doubled, so that it now exceeds five hundred, (iv.) Notwithstanding the increase in the number of bishoprics during the present reign the number of spiritual Peers has been reduced. The Irish bishops have ceased to be members of the House, and the number of the English episcopal seats has been kept stationary, the prelates (except the two Archbishops and the the Bishops of London, Durham, and Winchester, who sit at once) succeeding to them, as vacancies occur, in order of seniority, (v.) In 1876, provision was made for increasing the judicial strength of the Upper House by the appointment from time to time of four law lords of appeal in ordinary, who enjoy the title of Baron for life, without transmitting it to their heirs, and are entitled to a seat in the Upper House as long as they continue to exercise their judicial functions.