XIX. THE FORM AND CONTENTS OF STATUTES…

XIX. THE FORM AND CONTENTS OF STATUTES

[Sidenote: Difficulty of Passing Laws.]

We have seen that the legislative capacity of the House of Commons has nearly reached its limit. What is more, it is small, and markedly smaller than in the past. In the decade beginning with 1868, ninety-four government bills on the average became law each year, but of late the number has not been half so large, and private members' bills have fallen off in about the same proportion. The fact is that a growth in the number of members who want to take part in debate, a more minute criticism, and a more systematic opposition, have made the process of passing a bill through the House increasingly difficult. This is particularly true of measures that are long or complicated, for the greater the length the more the pegs on which to hang amendments.[356:1] Now the difficulty of passing laws has had an effect both on the form of the statutes and on the content of legislation.

[Sidenote: Drafting of Bills.]

A public bill introduced by a private member may be drafted by him, or by counsel he has employed for the purpose. There is no systematic supervision over such bills,[356:2] no stage at which their drafting is reviewed, and whether well or ill drawn, they are not likely to be much improved in their passage through Parliament. Government bills, on the other hand, which relate to England, and are not of a purely formal and routine character,[356:3] are now all drafted by the Parliamentary Counsel to the Treasury, or by his assistants under his direction.[357:1] They are prepared under instructions from, and after consultations with, the departments concerned, and are sometimes recast several times before they are introduced into Parliament. They are then assailed by a host of critics, both in and out of the Houses; some of them trying to pick flaws in a measure which they want to destroy; while others, who are not opposed to the general principle involved, discover provisions that affect their interests, based, perhaps, on local custom or privilege. The objections raised may not have been entirely foreseen, or may prove of greater political importance than was supposed, and hence amendments and new clauses are adopted during the debates in committee. These changes are usually made with the consent of the minister in charge of the bill, and the Parliamentary Counsel, as well as the permanent head of the department concerned, is often present under the gallery to give his advice; but still the amendments mar the fair handicraft of the draftsman, and an effort has to be made to improve the text either on the report stage or in the House of Lords.

[Sidenote: Defects of Form.]

Sir Courtenay Ilbert attributes the defects of form in the English statutes of the present day chiefly to the battering that a bill must almost necessarily encounter in passing through the House of Commons, and to the fact that an Act of Parliament is essentially a creature of compromise.[357:2] Yet there would seem to be other difficulties arising from the conditions under which legislation is conducted.

The Parliamentary Counsel's office has certainly improved the statutes very much by making them more concise, uniform and orderly; but their form is far from perfect. Two objects must be aimed at in drafting an act; one that it shall be intelligible to the persons who are compelled to obey it; and the other that the courts which interpret it, or the counsel who are called upon to advise upon it, shall be able to ascertain its precise meaning with certainty. Now to a layman, and even to a foreign lawyer, an English act is often difficult to understand, and sometimes misleading. To penetrate its intent one must frequently be familiar with all previous legislation on the subject. It is no doubt true that "No statute is completely intelligible as an isolated enactment. Every statute is a chapter, or a fragment of a chapter, of a body of law."[358:1] Still it does not seem necessary that English acts should be quite so obscure as they often are. Nor, judging from the amount of litigation that sometimes occurs over their interpretation, does this defect appear to be always counterbalanced by remarkable legal certainty. The most celebrated case is that of the Education Act of 1902. After the provision for the payment of religious instruction in the church schools out of local rates had provoked dogged resistance, and the magistrates had enforced it against recalcitrant rate-payers for a couple of years, the matter was brought before the higher courts by the refusal of the County Council for the West Riding of Yorkshire to make the payment; and the majority of the Court of Appeal was of opinion that the statute did not oblige it to do so.[358:2] The House of Lords reversed the decision;[358:3] but for Parliament to pass the Act in such a form that the Court of Appeal could regard it as failing to effect what everybody knew to be one of its main objects is surely an amazing example of bad drafting. Nor was this the result of amendments in the House of Commons, for the provision in question went through unchanged; and although in this case the fault is said not to lie at the door of the Parliamentary Counsel, it shows none the less the defects of the system.

[Sidenote: The Defects Arise;]

It has already been remarked that the limited capacity of Parliament for law-making affects both the form and the content of its acts; and this is one of many elements in a complex problem. The lack of time for comprehensive legislation, the political temperament of the nation, and the exigencies of a responsible ministry have each a marked influence on the form and the substance of the statutes; and, indeed, all these factors act and react upon one another.

[Sidenote: from Difficulty of Legislating;]

The difficulty of passing long or complicated measures makes the minister insist that his bill shall be as short as possible,[359:1] and hence it must include no clauses not absolutely necessary for the object he has in view. The draftsman, therefore, disturbs existing statutes as little as he can, either in the way of revising or incorporating their provisions. If he must embody earlier enactments in his draft, he does so by referring to them, rather than by repeating them.[359:2] The practice of legislation by reference, which is a source of no small inconvenience in using the statutes, has been carried very far. In fact there is a long series of "Clauses Acts" on various subjects, not enacted with an independent legislative force of their own, but placed on the statute book as standard provisions to be embodied in subsequent acts by reference express or implied.[359:3] The desire to have the bill short has also given a strong impulse to the practice of removing details from the body of the act, and massing them in schedules at its close.[359:4] This is an advantage to the minister who has charge of the bill, because while it does not withdraw the matters in the schedules from the control of the House, it does make them less conspicuous and concentrates the attention of the members on the principal questions of policy.

[Sidenote: from Political Temperament;]

A similar result, although one that concerns more directly the substance than the form of the statutes, may be traced to a conservative tradition in legislation. It is commonly said that in industrial matters Englishmen do not appreciate the value of the scrap-heap, that they tend to use old-fashioned machinery when it would be better to discard it altogether. If they dislike to abandon a machine, they have a still greater aversion to repealing an Act of Parliament. Every Briton happily believes that it is better to readjust the institutions of a country slowly, than to pull them down and build anew; and there being no line between the institutions that are fundamental, and those that are not, a fragment of the veneration for the British Constitution attaches to every statute; and, indeed, to custom also. This helps to make the legislator cautious, and his work tentative. Moreover, there is a great respect for vested rights, and for that matter for vested habits, and sometimes vested abuses. Sir Courtenay Ilbert tells us how much solicitude is aroused by the probable effect of a bill on the peculiar circumstances of the parish of Ockley-cum-Withypool, or the emoluments of the beadle of Little Peddlington.[360:1] Too much attention seems to be paid at times to such interests when they conflict with those of the public; and this brings up the third factor in the problem, that of cabinet responsibility, which has a marked influence on both the form and the content of legislation.

[Sidenote: Reform-sponsibility of Ministers.]

If the parliamentary system, as it has developed in England, intrusts the active conduct of legislation and administration to the ministry of the day, and thereby concentrates enormous political power in the hands of a few men, it does so among a highly individualistic people. The ministers wield their great authority on two conditions. One is that they must retain an absolute hold upon their own majority, and the other is that their rule must be tempered by liberty of criticism. They must explain everything they do, they must defend it against the attacks of the whole House, and justify it to the satisfaction of almost all their followers. The result is that they try to bring into their measures nothing that might furnish a needless target for critics, or prove a cause of offence to any of their supporters.

Restraint, in some form, is the price paid for power; and great strength in one direction is apt to conceal weakness in another. An English ministry with a good majority at its back appears omnipotent. It announces its policy, forces through its bills against the protests of the Opposition, and even against appeals from members on its own side not to put pressure upon them. But the power it exerts is in large part the resultant of other forces less openly displayed. If, on pain of disloyalty, and for fear of handing the government over to the adversary, the private adherent of the party in power must follow the whips in critical divisions, the ministers, on their part, are sometimes compelled by an insistent group of their supporters to adopt one measure, or to mutilate or abandon another. They cannot disregard the serious objections of any considerable section of their own followers, and this has become more and more true with the evolution of the parliamentary system. Half a century ago they might win as many votes from the other side of the House as they lost on their own, but that is rarely possible to-day. They must now carry with them on every question substantially the whole of their party.[361:1] Their omnipotence is therefore a very limited and cautious omnipotence, and this has shown itself, especially under the late Conservative government, in the meagre annual production of statutes.

[Sidenote: Revision and Codification of Statutes.]

If the legislation of a country is to consist, not in passing comprehensive laws dealing with a whole subject, but in making progressive changes by tinkering and patching the existing acts, it would seem an obvious convenience to issue from time to time new editions of those acts compiled in a more compact and intelligible form. It would be a great advantage to have frequent revisions or codification of the statutes on a subject, not involving a change of substance, but merely a simplification of form. But such a process of consolidation has not been common in England. A great deal of labour was expended on this object by several commissions during the nineteenth century; but the only positive results have been the production of two editions of revised statutes--being simply the statutes at large rearranged with the parts no longer in force omitted--and the passage of a limited number of acts consolidating the statutes on certain subjects.[362:1] Such acts are not easy to pass, because, as Sir Courtenay Ilbert remarks, "It is difficult to disabuse the average member of Parliament of the notion that the introduction of a consolidation bill affords a suitable opportunity for proposing amendments, to satisfy him that reenactment does not mean approval or perpetuation of the existing law, or to convince him that attempts to combine substantial amendment with consolidation almost inevitably spell failure in both."[362:2] The process has neither been extended to so many subjects, nor repeated at such short intervals, as might be wished.

[Sidenote: Temporary Laws.]

Another curious result of the difficulty of enacting laws may be seen in the long list of temporary statutes, continued in force from time to time, sometimes for many years. Some of these are acts of a transitory nature, designed to cover an emergency, or to deal with an ephemeral state of things. Laws of that kind expire with the conditions that called them forth. But the English temporary acts often relate to permanent matters. That a statute of an experimental character should be enacted at the outset for a limited period is natural enough, but when the period has come to an end, and the experiment has proved a success, one would expect to see the law reenacted in an enduring form. In England, however, there is passed every year an Expiring Laws Continuance Act, giving another twelve-month's lease of life to a list of acts appended in a schedule, many of which are already old. One or two have already reached the age of threescore years and ten; and among the list are still found the Ballot Act of 1872, with most of the statutes of the last half century that regulate the conduct of elections. The reason for the existence of perpetual temporary laws is to be found, no doubt, in the fact that in this form they can be continued almost without opposition, while an attempt to enact them as permanent statutes would give rise to great debates with a host of amendments, and consume a vast deal of the one thing whereof the ministry has never enough--that is time.

[Sidenote: Delegation of Legislative Power.]

The limited capacity of Parliament to pass statutes is not felt as a pressing evil, because the period of great remedial legislation is over. The transition from the political and industrial conditions of the eighteenth century has been accomplished, and the consequent change in laws and institutions has been, in the main, effected. The demand for radical legislation is, therefore, comparatively small, and for the time at least the process of making law can afford to run slow. Yet it may be doubted whether, with the great extension in the sphere of government, Parliament could be suffered to move at its present pace were it not for the growing practice of delegating legislative power. We hear much talk about the need for a devolution of the power of Parliament on subordinate representative bodies, but the tendency is not mainly in that direction. The authority of this kind vested in the county councils by recent statutes is small, too small to affect the question. The real delegation has been in favour of the administrative departments of the central government, and this involves a striking departure from Anglo-Saxon traditions, with a distinct approach to the practice of continental countries.[363:1]

[Sidenote: Statutory Orders.]

Formerly an English statute went into great detail, attempting to provide expressly for every question that could possibly arise. Its interpretation, or its applicability to a special case, could be determined only by the courts, while its defects could be remedied, or its omissions filled up, only by another statute. It contained in itself the complete expression of the legislative will. But of late it has become more and more common for Parliament to embody in a statute only general provisions, and give to some public department a power to make regulations for completing the details, and applying the act to particular cases. These regulations--known as statutory orders--cover a great variety of subjects, and govern not only the duties of officials, and the administration of public affairs, both national and local, but also the conduct of individuals in the management of their own concerns. They prescribe, for example, how many persons can live on canal-boats, the number of cubic feet of air in factories, the precautions that must be taken for cleanliness in dairies, what per cent of water may be contained in genuine butter, and under an authority of this kind a general order was issued in 1900 for muzzling all the dogs in the country.

[Sidenote: Control of Parliament over Provisional Orders.]

Parliament usually attempts to retain a control, or at least an oversight, of the orders made by the public departments under the authority delegated to them in this way. Sometimes the order is issued under a power that is provisional only, and does not become operative until confirmed by a statute. This is usually, though not invariably,[364:1] true of rights granted to private companies or local authorities to construct works of public utility, such as waterworks, gas-works, tramways, and the like.[364:2] Provisional orders of that kind do not involve any true delegation of legislative power, because they derive their validity, not from the act of the department, but from the statutes by which they are confirmed; and they are included among the Acts of Parliament, and not the statutory orders of the year. Practically, however, they are almost always confirmed without amendment.

[Sidenote: Over Statutory Orders.]

Parliamentary control over statutory orders strictly so called, which involve a real delegation of legislative power, is commonly maintained by requiring them to be reported to the two Houses; and in order to give an opportunity for preliminary criticism, the regulation, or a draft thereof, must sometimes be laid on the table for a certain time before it becomes operative.[365:1] Moreover, control by Parliament is often expressly reserved by providing that if, within forty days, either House presents an address to the Crown against a draft or order, then the order shall not be made, or in case it has already gone into effect it shall thenceforth be void.[365:2] An address under such a provision is exempted from the rule about the interruption of business in the House of Commons, and hence can be moved by a private member at the close of the sitting on any evening, without taking his chance in drawing lots, or appealing to the government for a part of its time.[365:3] As a matter of fact, motions of this kind are uncommon, and are rarely, if ever, successful; although the frequency with which the statutory orders are revised by the departments would seem to show that the officials who make them are highly sensitive to outside opinion.

Since 1893 the statutory orders of each year have been regularly published like the Acts of Parliament;[365:4] and an idea of their number may be derived from the fact that they always fill one, and often two, large volumes, each much thicker than the present emaciated book of the Public General Acts.[366:1] In spite of the potential control retained by the Houses over statutory orders, the growing habit of delegating authority to make them involves a substantial transfer of power from Parliament to the executive branch of the government, a transfer due in part to the increasing difficulty in legislation.

The existing relation between the cabinet and the House of Commons has thus had a number of distinct, and at first sight contradictory, effects. While placing the initiative for almost all important legislation in the hands of the ministers, it has tended to reduce the number and completeness of the laws they can carry through; and on the other hand it has helped to invest them with a power of subordinate or secondary legislation quite foreign to English traditions. This is true of public matters, but in regard to private and local acts the relation of the cabinet to Parliament, and hence the effects of that relation, are wholly different.

FOOTNOTES:

[356:1] Cf. Ilbert, "Legislative Methods and Forms," 217.

[356:2] Ilbert, Ibid., 90-91. Private bills are, of course, drafted by the counsel for the petitioners, and provisional order bills by the department that grants the provisional order.

[356:3] Ilbert, "Leg. Methods and Forms," 86 note. The Scotch and Irish bills, and almost all the most important Indian bills, are drawn by draftsmen attached to the offices for those countries.

[357:1] Sir Courtenay Ilbert, himself Parliamentary Counsel at the time he wrote his work on "Legislative Methods and Forms," has given therein an excellent description of the history (67-69, 80-85) and the work (85-97, 218-19, 227-31) of the office.

[357:2] "Leg. Methods and Forms," 229-31.

[358:1] "Leg. Methods and Forms," 254.

[358:2] Rex vs. West Riding of Yorkshire, (1906) 2 K.B., 676.

[358:3] Atty. Gen. vs. West Riding of Yorkshire, (1907) App. Cas., 29.

[359:1] Ilbert, "Leg. Methods and Forms," 217, 241.

[359:2] Ibid., 217-18. Cf. 254-66.

[359:3] This is particularly true in the case of local and private bills, where the provisions of "Clauses Acts" must often be incorporated, either by the terms of those acts, or in consequence of the standing orders on private business. Ibid., 261.

[359:4] Cf. Ibid., 266-68.

[360:1] Ilbert, "Leg. Methods and Forms," 230.

[361:1] The extent to which this is done, and the amount it has increased, is shown by statistics in the chapter on "The Strength of Party Ties." The difficulty to-day comes, not from the opinions or interests of individual members, but from groups of members acting on public grounds, or at least, on grounds which affect a great part of their constituents.

[362:1] Ilbert, "Leg. Methods and Forms," Chs. iv., vii.

[362:2] Ibid., 113.

[363:1] Cf. Ilbert, "Leg. Methods and Forms," Chap. iii., and pp. 220-21, 224.

[364:1] Authority, for example, to construct a light railway, which is legally distinct, but physically indistinguishable, from a tramway, does not require confirmation by Parliament, 59-60 Vic., c. 48, Sec.9.

[364:2] A change in the boundaries of a county or borough requires in the same way confirmation by Parliament; but an order altering an urban or rural district or parish, requires only to be laid upon the table of each House, 51-52 Vic., c. 41 (part 3).

[365:1] Drafts of orders that are not required to be laid before Parliament before they come into operation, must, by 56-57 Vic., c. 66, Sec. 1, be open to criticism, by any public body interested, for forty days before they are finally settled and made. But this does not apply to rules made by the Local Government Board, the Board of Trade and some others (Sec. 1 (4)).

[365:2] Cf. Ilbert, "Leg. Methods and Forms," 41, cf. 310-14.

[365:3] Ilbert, "Manual," Sec. 36.

[365:4] 56-57 Vic., c. 60, Sec. 3.

[366:1] This last, however, does not contain the text, but only a list of titles, of local and private acts, although many of them are legally public general acts. On the other hand the published statutory orders for the year do not include by any means all the orders of a temporary nature.

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XX. PRIVATE BILL LEGISLATION

If the direction of important legislation of a public character lies almost altogether in the hands of the ministers, special laws affecting private or local interests are not less completely outside of their province.

[Sidenote: The Nature of Private Bills.]

Private Acts of Parliament are of immemorial antiquity, but they seem to have first become numerous in connection with the building of turnpike roads and the enclosure of commons in the second half of the eighteenth century.[367:1] They were also the means used to authorise the construction of canals, and later of railways; and, in fact, it was the great number of railway bills, presented in 1844 and 1845 that gave rise to the modern private bill procedure in the House of Commons.

Apart from railway bills they have been used of late years chiefly to regulate local police and sanitary matters, or to grant powers to private companies or municipal corporations for the supply of public conveniences, such as water, gas, electric light, or tramways; for private bill procedure applies not only to bills that affect private persons or companies, but also to those that deal with the rights and duties of organs of local government in any particular place.[367:2]

The line, however, between public and private bills is not altogether logical. Measures, for example, touching matters of general interest affecting the whole metropolis have been passed as public bills; and this has been true to a smaller extent of other places; while bills regulating affairs of less importance for those very areas have been treated as private. In fact the same subject has at different times been dealt with by public and private bills; the question which procedure should be followed depending upon the uncertain standard of the degree in which the public interest was involved.[368:1] With these exceptions it may be said that every bill introduced for the benefit of any person, company or locality, is, for the purposes of procedure, a private bill.

[Sidenote: Procedure on Private Bills.]

The standing orders that govern procedure upon private bills are much more elaborate and comprehensive than those relating to public bills. They fill in print five times as many pages; and although custom and precedent play an important part, still the printed rules approach very nearly to a code of private bill procedure.[368:2]

[Sidenote: Petition and Notice.]

Before a private bill is introduced, a petition therefor is drawn up, and in order to give any one interested an opportunity to prepare his objections, notice of the petition must be given, in October or November, in The Gazette, in appropriate local newspapers, and in some cases by posters upon the roadside. Personal notice must also be served in December upon the owners of land directly affected, and if the petition is for leave to build a tramway, the consent of the local authority must be obtained.[369:1] Plans of the work proposed must also be deposited for inspection both at Westminster and with some local officer.[369:2] The petition, with the bill itself, must be filed on or before Dec. 17 in the Private Bill Office of the House, and a copy must be delivered to the Treasury, the Local Government Board, the Post Office, and to any other department whose duties relate to the subject involved.[369:3] The petitioner is also required to file estimates of cost, and to deposit a sum equal to four or five per cent. of the proposed expenditures as a guarantee fund for the benefit of persons who may be injured by a commencement, and failure to complete, the work.[369:4]

[Sidenote: Examiners of Petitions.]

The next step is to make sure that these preliminary regulations have been obeyed. It is done by paid officers of the House called Examiners of Petitions for Private Bills,[369:5] and since 1855 the two Houses have appointed the same persons to that post, so that the process is gone through only once.[369:6] The petitioner must prove before the examiner that he has complied with the standing orders; and any person affected has a right to be heard on the question, if he has filed a memorial of his intention to appear. The examiner certifies that the standing orders have been followed, or reports in what respect they have been disregarded.[369:7]

[Sidenote: Legislative and Judicial Aspects of the Procedure.]

Private bill procedure has both a legislative and a judicial aspect. The final aim being the passage of an act, a private bill goes through all the stages of a public bill, and the records of its progress appear in the journals of the House. But the procedure is also regarded as a controversy between the promoters and opponents of the measure, and this involves an additional process of a judicial character. For that purpose the full records of the case are preserved in the Private Bill Office, where they are open to public inspection. The preliminary steps already described are intended chiefly to prepare the case for the judicial trial, and to give opponents a chance to make ready their defence. They correspond to the pleadings in the clerk's office of a court; and they are conducted by a parliamentary agent who performs the duties of a solicitor in a law suit.[370:1]

[Sidenote: Introduction of the Bill.]

The preliminaries over, the bill is ready to be introduced, and the first thing is to arrange in which House it shall begin its career. This is decided at a conference between the Chairmen of Committees of the two Houses, or in practice by the gentlemen who act as their legal advisers, the Counsel to Mr. Speaker and the Counsel to the Lord Chairman of Committees.[370:2] All these proceedings take place before the usual date for the meeting of Parliament, so that when it assembles the bills can be brought in at once.[370:3]

If the examiner reports that the standing orders have been complied with, the bill is presented forthwith by being laid upon the table of the House. If not, his report is referred to the Committee on Standing Orders, composed of eleven members chosen by the House itself at the opening of the session.[371:1] This committee reports whether the omission is of such a nature that under the circumstances it ought to be excused or not; and the report is almost always adopted by the House. In case the omission is excused the bill is presented by being laid upon the table; and every bill is deemed when presented to have been read a first time.[371:2]

[Sidenote: Second Reading.]

On the next stage, the second reading, a debate may take place upon the general principle involved, and a bill is sometimes rejected at this point, either because it is inconsistent with public policy, or because opponents whose interests are involved have been able to persuade a majority of the members to vote against it. Instructions to the committee about the provisions to be inserted in the bill can also be adopted at that time.

[Sidenote: Private Bill Committees.]

The committee stage of the bill, for the consideration of its provisions in detail, is devolved upon a private bill committee. Here takes place the judicial process, or trial of the controversy between conflicting interests, which presents the peculiar feature of the English procedure. Until near the middle of the nineteenth century the committees for private bills were made up on the same principle as select committees on other matters. They consisted in large part of supporters and opponents of the measure. But in 1837 the Lords began to form their private bill committee of a small number of wholly impartial members,--a practice which was adopted by the Commons for railway bills in 1844, and for all other private bills in 1855.[371:3] The system of committees in the two Houses is now very much the same,[372:1] the order of proceeding in the Commons being as follows: All opposed private bills, except those relating to railways and canals, divorce, and police and sanitary matters, are referred under the rules to the Committee of Selection, which divides them into groups and refers each group to a separate committee, consisting of a chairman and three members not locally or otherwise interested, all of whom it appoints for the purpose.[372:2]

[Sidenote: Railway and Canal Bills.]

In order to secure greater uniformity in the private acts relating to railways, a general committee on railway and canal bills was created in 1854.[372:3] It is appointed every year by the Committee of Selection, and to it are referred all bills of that kind. But it does not take charge of them itself. It merely divides them into groups, and then acts as a chairman's panel; that is, it refers the bills to separate committees, the chairman of which it selects from its own ranks, the other three members being appointed by the Committee of Selection.[372:4]

[Sidenote: Police and Sanitary Bills.]

With the same object of obtaining uniformity, all bills promoted by local authorities for police and sanitary purposes were referred after 1881 to a single committee. In this case, however, the bills were not too numerous to be considered by the committee itself, although to relieve pressure it was, in 1892, enlarged to eleven members, and authorised to bisect itself for the more rapid despatch of business. Curiously enough the committee was discontinued for some years, but, after loud complaints about exceptional powers granted by private acts, it was revived by sessional order in 1903, and intrusted with all police and sanitary bills which contain powers "in conflict with, deviation from, or excess of, the general law."[373:1]

A committee on divorce bills is still provided for in the rules, but since the power of granting divorces in England and Scotland has been entirely transferred to the courts, bills of this kind have become rare. While the various private bill committees are thus formed in slightly different ways, their mode of dealing with the measures that come before them is the same.

[Sidenote: Locus Standi.]

The bills referred to these committees have been described as "opposed," but that implies an opponent, and means, not an objector in the House, but an outside contestant on the basis of interest, for the chief object of these committees is a judicial hearing of opposing parties. If there is no opponent, so that the question is solely whether the privileges sought are consistent with the public welfare, the bill is said to be unopposed, and goes through quite a different procedure to be described hereafter. Plainly, therefore, the question who may oppose a bill, and on what grounds, is of vital importance. A person who enjoys the right is said to have a locus standi; and the first question to be decided is whether an opponent does or does not have it.

Now, any one who wishes to oppose a bill must, on or before Feb. 12, file a petition in the Private Bill Office, stating the ground of his objection,[373:2] and if the promoters contest his right to appear,[373:3] the question of locus standi is decided by the Court of Referees, consisting of the Chairman of Ways and Means, the Deputy Chairman, and not less than seven members of the House appointed by the Speaker. The Counsel to Mr. Speaker assists the court, but sits now only as an assessor.[373:4] The principal divergence in the procedure of the two Houses arises at this point, for questions of locus standi are determined in the House of Lords by the committee that considers the bill; and there is some difference of opinion about the relative merits of the two systems.[374:1] In both Houses the decisions are governed partly by express provisions in the standing orders,[374:2] and partly by precedents that have hardened into rules.

[Sidenote: Grounds of Locus Standi.]

In order to have a locus standi, an opponent must, as a rule, show that the bill may affect his property or business. He must prove a personal interest distinct from that of the rest of the community. Moreover, it is a general principle that, except on the ground of some special injury to themselves, both individuals and public boards are precluded from opposing before a private bill committee a public body on which they are represented. If, for example, a borough proposes to construct and work a tramway, an omnibus company has a right to be heard in opposition, but a rate-payer who believes that the plan will be financially disastrous has not.[374:3]

It is, of course, unnecessary to describe here all the kinds of private interest that will furnish a locus standi.[374:4] But in general, it may be said that the right is enjoyed by all persons whose land is to be compulsorily taken; by the owners and occupiers of buildings along the line of a proposed tramway; by traders affected by the tolls, fares, or rates proposed;[374:5] by public authorities; and sometimes by inhabitants acting on behalf of a county, town, or district, that is or may be affected. Competition, also, is a ground for locus standi, although the right to appear is usually confined to monopolies, to organisations that represent the trade as a whole, or to individuals whose business is important enough to represent that trade;[375:1] moreover the privilege is extended by the standing orders to chambers of agriculture, commerce or shipping.[375:2] While, therefore, the rules of locus standi are not perfectly logical, they are distinctly based upon private interest, individual or collective, and not upon the general welfare.

[Sidenote: Hearing before the Committee.]

The hearing of the parties before the committee follows the pattern of a trial in a court of law, even to the standing of the counsel employed. Up to this point the parties have been represented by parliamentary agents, who, although not necessarily attorneys or solicitors, hold a similar position, and must be registered in the Private Bill Office.[375:3] The actual hearings, however, like trials in court, are conducted by barristers. The fees, which are large, attract a high order of talent, and in fact the practice before private bill committees has become almost a distinct branch of the profession, the counsel who pursue it being known as the parliamentary bar.[375:4] The proceedings are strictly judicial in form, the barristers examining and cross-examining the witnesses and making the arguments in the ordinary way. Moreover, if either party has vexatiously subjected the other to expense, the committee can award costs like a court of law, and this is occasionally done.[375:5]

The first thing taken up is the preamble, the hearing upon this involving the general merits of the bill, so that if the committee is of opinion that promoters have failed to prove that part of their case, it reports at once against the bill. Otherwise the clauses are taken up in order, and the committee reports the bill with or without amendments.

[Sidenote: The Committee and Public Policy.]

Although the peculiar function of the committee consists in passing upon the conflicting claims of the parties that appear before it, the question whether the public welfare will be promoted by the enactment of the bill must be considered also. This is, of course, one of the chief things that the promoters must prove; but the committee seeks no evidence on its own account, nor can it permit a private person who has no locus standi to address it on the subject. In the interest of public policy, however, some safeguards have been devised. In the first place the standing orders direct that in various classes of measures certain provisions must be inserted. These relate to such matters as the level of roads, grade crossings, the amount of mortgages, the time for completing works, deposits to secure completion, minimum rates of fare, the application of general railway acts, leaving open spaces for recreation in enclosure bills, and the erection in London of new workmen's dwellings to replace others that are torn down. In some cases also the committee must report specially any unusual provisions contained in the bill, notably in relation to the borrowing powers of local authorities.

Moreover, on some questions the committee has the benefit of advice from public officials. That private bills must be filed with one or more of the public departments has already been pointed out. In a few cases the departments are directed to submit to Parliament a report upon the bill,[376:1] and they are always at liberty to do so. Under the rules these communications are referred to the committees,[376:2] which are required to notice in their reports the recommendations of the departments, and state the reasons for dissent where they have not been followed.[376:3] Occasionally, representatives of the departments appear before the committees;[377:1] and, what is more important, a general oversight of private bill legislation, with the right to make suggestions, is maintained by the officers of the Houses.[377:2] This is especially true of the Counsel to Mr. Speaker, and of the Chairman of Committees and his counsel in the House of Lords; but the question how effective their supervision is must be deferred until the results of the system are discussed.

[Sidenote: Unopposed Bills.]

Unopposed bills, that is bills where no adverse petition has been filed, or where the petitioner has not proved a locus standi, do not involve a judicial trial between contestants, but only an examination with a view to the public interest.[377:3] They are, therefore, referred to quite a different committee. Until 1903 it consisted of the Chairman, or Deputy Chairman, of the Committee of Ways and Means, and the Counsel to Mr. Speaker, assisted usually, but not always, by one other member of the House.[377:4] The Select Committee of 1902 on Private Business was of opinion that a body with so much authority ought to be strengthened by the addition of more members directly responsible to the House,[377:5] and in partial fulfilment of its recommendations the standing orders provided in the following year that the Committee on Unopposed Bills should consist of the Chairman and Deputy Chairman of Ways and Means, of two other members of the House, appointed by the Committee of Selection, and of the Counsel to Mr. Speaker.[378:1]

The bills having already been read through by the Speaker's Counsel, and in part by the Chairman of Ways and Means, the committee goes over them rapidly with the promoters, discussing chiefly such points as have been raised by the Speaker's Counsel, and by any reports from government departments.[378:2] If any other question should come up involving a new and important matter of public policy, the Chairman, who was already overworked, would formerly have avoided the responsibility of deciding it himself by reporting to the House, as he has power to do,[378:3] that the bill ought to be treated as opposed;[378:4] and this although there was no one to conduct the opposition.[378:5] One of the objects of strengthening the committee was to put it in a position to decide all such questions itself. As a matter of fact the committee often makes amendments in a bill, but seldom reports that it ought not to pass.

[Sidenote: Report and Consideration.]

After a bill, whether opposed or not, has been reported, the House, if dissatisfied, may recommit it either as a whole or with reference to particular clauses, and with or without instructions. When this does not happen, and it is unusual, the bill, if reported without amendment, and not a railway or tramway bill, stands ready for its third reading. If, on the other hand, it has been amended by the committee, or is a railway or tramway bill, it is ordered to lie upon the table for consideration on report.[378:6] At that stage amendments may be proposed, or a motion may be made to recommit, but in order to insure that the standing orders are complied with, both by the private bill committee and by the House itself, the consideration cannot take place until the Chairman of Ways and Means has informed the House that this is the case; nor can any amendments be offered until the Committee on Standing Orders has reported upon them, if the Chairman thinks it proper that they should do so.[379:1]

The last stage is that of third reading where only verbal amendments are in order.[379:2]

[Sidenote: Private Bills in the Lords.]

After passing through one House a private bill goes to the other, and there is the usual process for reaching an agreement upon amendments. It is needless to trace here the course of a private bill in the Lords.[379:3] The procedure is essentially the same as in the Commons, and the only differences of any consequence have already been mentioned in the text or in the notes. A great deal of discussion has taken place upon the wisdom of having two separate hearings before the private committees of the two Houses.[379:4] It has been suggested that a second hearing is needless, and that time and expense would be saved by having a single trial before a joint committee. On the other hand it is urged that where a bill is objectionable or defective the second hearing gives a better chance to reject or improve it; and that as a matter of fact the parties often accept the decision of the first committee, or compromise their differences, only about one third of the bills opposed in one house being opposed again in the other.[379:5]

[Sidenote: Special Procedure for Scotland.]

The inconvenience and expense of a trial before a committee in London led to a strong demand for hearings in Scotland upon private bills relating to that kingdom, and in 1899 a statute was enacted for that purpose.[380:1] The Act and the general orders made in pursuance thereof, provide that, instead of following the ordinary procedure, promoters of Scotch private bills shall, in April or December, file a petition with the Secretary for Scotland for a draft provisional order deposited therewith. They must also comply with rules similar to those in force for private bills about giving notice, and filing copies and plans with the government departments. The draft order is submitted to the Chairmen of Committees of the two Houses. If either of them is of opinion that it affects interests outside of Scotland, or is of such a character, or raises such a question of policy, that it ought not to be dealt with in the new way, then it takes the regular course of an English private bill. If not, the order follows the new Scotch procedure. The two Chairmen assign an examiner to see that the general orders about notice, and other matters, have been observed, the final power of dispensation in case of non-compliance resting also in their hands. After these preliminary steps have been taken, the petition is ready to begin its active career.

[Sidenote: Scotch Private Bill committees.]

If the petition is not opposed, the Secretary for Scotland may, after considering the reports of the public departments, make the provisional order, as prayed for or with amendments. In short, he takes the place of a committee on unopposed private bills. If, on the other hand, he thinks an inquiry ought to be held, or if the petition is opposed, he sends it to a commission selected on a curious plan designed to retain the work as far as possible in parliamentary hands. The difficulty, on one side, of getting members of Parliament to undertake such a service, and the desire, on the other, to retain a close connection with the Houses, resulted in a compromise between a parliamentary committee and a permanent commission.[381:1] Each House provides a panel of its own members, that of the Commons consisting of not more than fifteen members appointed by the Committee of Selection.[381:2] There is also an extra parliamentary panel of twenty men appointed for a term of five years by the two Chairmen and the Secretary for Scotland. The commission upon every petition consists of four persons taken from these panels, the Chairmen of Committees selecting two from the panel of each House, if possible; if not, they appoint as many of the four as they can from the two House panels indiscriminately, the remainder in any case being taken by the Secretary from the extra parliamentary panel.[381:3] The commission so formed holds its sessions, of course, in Scotland, proceeds like a committee upon an opposed private bill, and has power to decide all questions of locus standi. It reports to the Secretary whether the provisional order should be issued and in what form; and he acts accordingly.[381:4]

[Sidenote: Confirmation by Parliament.]

The order of the Secretary, whether opposed or unopposed, is not final, but provisional only, and requires confirmation by Parliament. He brings in a bill to confirm it, and if the order was not opposed in Scotland, or is not opposed in Parliament, it is treated as if it had already gone through all the stages up to and including committee, and is ordered to be considered as if reported from a committee of the House. But the right of the parties to a hearing in Parliament as the final court of appeal has been to some extent preserved, for a petition may be presented against any order that has been opposed, or has been the subject of a local inquiry, in Scotland, and in that case a motion may be made to refer the bill to a joint committee, which hears the parties as in the case of an ordinary private bill, but reports to both Houses. The question of permitting an appeal to a parliamentary committee in London was much discussed at the time, and the bill as finally passed reserved the right, limiting it to a single hearing before a joint committee, instead of two hearings before separate committees of each House as in the case of an ordinary private bill. The promoter, moreover, as well as the opponent, has a right to appeal to Parliament. If his draft order is refused, he may, without going through the other preliminary steps, file it in the form of a substitute bill in the proper public office, and proceed with it like a private bill.[382:1]

The Scotch procedure has thus the effect of a compulsory arbitration in Scotland, preceding a possible trial at Westminster. It appears, however, that a Scotch confirmation bill is in fact seldom opposed in London.

[Sidenote: Ireland and Wales.]

Two years after the Scotch statute was passed, similar acts were proposed for Ireland and for Wales, but neither of them was passed. A select committee on a Welsh bill of this kind reported in 1904 that the Scotch procedure as it stood was not adapted to Wales, and that any desire in England for a less costly procedure than now existed would best be met by an extension of the system of provisional orders. The committee remarked that while most of the witnesses examined thought the Scotch Act had worked well on the whole, some of them believed there had been no saving of expense in the case of large schemes. This was attributed by the witnesses mainly to the cost of bringing counsel and experts from London, and in fact, the evidence showed no little difference of opinion about the advantages of the new procedure in several respects.[382:2] In Ireland there is another obstacle to the adoption of the Scotch Act; for while local hearings on private bills would have especial value beyond St. George's Channel, the Nationalists do not want any form of devolution that leaves the final management of Irish affairs in the hands of the British Parliament.

[Sidenote: Provisional Orders.]

The vast amount of private legislation enacted in England every year is due in large measure to the absence of general statutes upon subjects that would seem to be ripe for them. Year after year private bills are passed on the same subject, until a policy is established which might well be crystallised into a general law, leaving the controversies that arise in its application to be settled by a body of purely judicial character; or, as in continental countries, a final power of dealing with these matters might, subject to rules fixed by law, be vested in the administrative departments. That many costly bills in Parliament would be saved by passing appropriate statutes has been suggested,[383:1] yet the process goes on slowly, and so far as it has been carried it is for the most part incomplete. During the last fifty years central administrative authority in local and other matters has increased enormously, but in conferring powers upon public departments Parliament has been reluctant to give up its own ultimate control over particular cases. This is especially true of the compulsory sale of land for public purposes; for property in land still retains a peculiar sanctity in England.[383:2]

Parliament has, no doubt, in many cases, delegated to the administrative organs of the state a final authority to grant special powers to local bodies or private companies, or at least to sanction their use;[383:3] but in other cases the grant must be laid before the Houses, and does not go into effect if either of them passes a resolution of disapproval.[383:4] Sometimes if opposed,[384:1] and more often whether opposed or not, the orders conferring the powers must be submitted to Parliament for a formal ratification. This is the origin of provisional orders. They are issued by a government office under the authority of statutes, but they are merely provisional until confirmed by Parliament. Except the Treasury, the Admiralty, and the Indian and Colonial Offices, which can hardly come into direct touch with local affairs, almost all the important departments, and even the county councils, have been given some powers of this kind; and they cover all manner of subjects that would otherwise be dealt with by private bills.[384:2]

[Sidenote: Procedure upon Provisional Orders.]

Provisional orders are begun by an application to the department that has power to issue them, and although the standing orders do not as a rule apply to these applications,[384:3] yet, by the enabling acts, or by the instructions issued by the departments themselves, similar regulations about notices, deposit of plans, consent of local authorities, and so forth, are enforced. The department usually holds, by means of an inspector, an inquiry on the spot; and either in this or in some other way objectors who are interested are given a chance to present their case. Upon the report of the inspector, and such other information as it obtains, the department decides whether it will make the order or not.

The orders made are then arranged in groups according to their subjects, and each group is scheduled to a confirming bill, which is introduced into Parliament like a public bill by the minister at the head of the department. But it is not treated as a public bill, still less as a government bill.

The minister does not try to force it through; he does not put pressure upon his followers by having the government whips act as tellers in a division. The measure is treated as a group of private bills, except that if an order is unopposed an officer of the department appears in support of it before the committee. The bill is read a first time, sent to the examiner, read a second time and referred to the Committee of Selection or the Committee on Railway and Canal Bills. Then if no petition has been filed against any of the orders in the bill it goes to the Committee on Unopposed Private Bills; otherwise it goes, with all the orders it contains, to an ordinary private bill committee which gives a hearing in the usual form to the promoters and opponents of the orders that are opposed.[385:1] Finally, the bill goes through the regular stages in the House.[385:2] In fact the standing orders direct[385:3] that provisional order bills, after being reported, shall be subject to the same rules as private bills, except so far as the payment of fees by the promoters is concerned.

[Sidenote: Advantages of Provisional Orders.]

The question of fees is a very important matter. It is one of the chief reasons for resorting to a provisional order; because the fees charged by the Houses to the promoters of private bills are heavy, and in the case of unopposed bills they form a large part of the cost of obtaining the act. An unopposed provisional order is, therefore, very much less expensive than an unopposed private bill; and although, with the large fees of counsel and expert witnesses, an opposed order may cost as much or even more than an opposed bill, it has the benefit of the presumption arising from the action of the department. Moreover, provisional orders, even if contested before the department, are not commonly opposed in the House. In the four years from 1898 to 1901 less than one tenth of the provisional orders were opposed in Parliament, and only one of them failed to pass.[386:1] It is, indeed, noteworthy that of the 2520 provisional orders issued by the Local Government Board from 1872 to 1902 only 23 were rejected by Parliament.[386:2]

[Sidenote: Defects of Private Bill Legislation.]

[Sidenote: Expense.]

The system of private bill legislation, like the rest of man's handiwork, is not altogether without defects. One of these is the costliness of the procedure. A local governing body that wants to do some obvious and necessary public duty, such as to take land for the purpose of a new street or schoolhouse, must go to the expense of getting a provisional order; or if the object happens to be one not covered by any statute for provisional orders, it must incur the greater cost of promoting a private bill; and in either case the owner, if determined to fight to the bitter end, can force the expense up to a considerable sum. In the House of Commons there is a fee for almost every step that is taken by the promoters of a private bill; the minimum fees for the various stages in the House itself taken together are never less than thirty-five pounds, and they increase according to the amount involved, up to four times as much. There is, moreover, a fee of ten pounds for each day that the committee sits, if the promoters appear by counsel, and of five pounds if they do not. Fees on a smaller scale are also charged to opponents. Altogether the annual receipts of the House of Commons from private bill legislation average over forty thousand pounds, while its expenses on that account are less than twelve thousand.[386:3] In the House of Lords the fees are arranged somewhat differently, but they are, on the whole, about as large;[386:4] so that the parliamentary charges on the smallest unopposed private bill amount to over one hundred and ninety pounds. Then there are the expenses of parliamentary and local agents, of printing, advertising, and, in the case of opposed bills, of counsel, witnesses, and experts. Sometimes, all this makes a very large sum. Birmingham, for example, spent 44,750_l._ in 1892 in promoting a single bill.[387:1]

The total amount spent by local authorities in the United Kingdom during the seven years from 1892 to 1898 in promoting and opposing private bills was 1,396,407_l._, while private companies expended for the same purpose 2,806,813_l._. Adding the smaller sums spent on provisional orders, and those paid out by harbour and dock boards, the grand total consumed in private legislation was 4,496,834_l._[387:2] The cost of opposed bills cannot be materially reduced by Parliament if the present system is to be maintained; and while this is not true of unopposed bills, it has been argued that high fees are an earnest of good faith and tend to check private speculation in concessions.

[Sidenote: Neglect of the Public Interest.]

A second defect in the system is a lack of sufficient attention to the interests of the public. As early as 1865 it struck observers that, apart from certain partial safeguards, the public had no friend in this class of legislation.[387:3]

The fact is that private bill committees are chiefly occupied by a hearing between conflicting interests, in which a citizen whose only motive for appearing is the general welfare has no locus standi.[387:4] Moreover, they are shifting tribunals, whose decisions are uncertain, and whose very nature renders a consistent policy extremely difficult. In fact it is this uncertainty that often causes promoters to try the chance of a private bill, rather than apply for a provisional order on the same subject to a public department that is trying to enforce a well-known policy at variance in some respects with the powers the promoter is seeking to obtain.

The committees are sometimes willing to grant new and unusual powers, without enough regard for the ultimate effect of the precedent they create. This has been specially true in the case of borough councils, and was a cause of no small complaint before the Committee on Municipal Trading in 1900.

[Sidenote: Effect of the Standing Orders.]

There are, indeed, certain means of preserving uniformity of action that are more or less effective. The first of these are the standing orders, which lay down some rules for the guidance of the committees, and prescribe a few provisions that must be inserted in certain classes of bills. They do not, however, go very far.

[Sidenote: Clauses Acts and Model Bills.]

Then there are the clauses acts, of various kinds, which are practically always incorporated--though not without additions or exceptions--in private bills on the subjects with which they deal. There are, also, the model bills, which have been carefully drawn up as standards for the committees to follow, although they are by no means obliged to do so. But all these things tend merely to maintain uniformity in legislation of a well-recognised type, along familiar lines. They have little effect in cases where a request is made for new and unusual powers. Cases of that kind are not, indeed, wholly without supervision. If a bill deals with local police or health, it goes before the Police and Sanitary Committee created by the House of Commons for the very purpose of preserving a consistent policy in such matters, and of no small use in that way.[388:1] But this is true only for a very limited class of measures.

[Sidenote: The Government Departments.]

The only general oversight comes from the government departments, and the officers of Parliament. It has already been pointed out that all private bills must be referred to one or more of the departments, and that these are sometimes obliged, and always at liberty, to make reports upon them. The reports go to the private bill committees, which are required to notice the recommendations therein in their own reports to the House. The suggestions cannot, therefore, be entirely ignored, but the departments have no means of enforcing them. The Home Office is, indeed, always represented before the Committee on Police and Sanitary Bills,[389:1] but it is rarely asked to attend before others;[389:2] and, in general, it may be said that for a department to communicate with the committees save by its written reports is somewhat exceptional.[389:3] On novel questions of policy, moreover, the departments seem to follow rather than lead the private bill committees.[389:4]

[Sidenote: Chairman of Ways and Means.]

The officers of the Houses of Parliament have a more effective influence. Under the standing orders of the Commons all private bills must be shown to the Chairman of Ways and Means, both before they are considered by a committee and after any amendments have been made.[389:5] When sitting in the Committee on Unopposed Bills, he frequently requires the agent of the promoters to omit or insert clauses,[389:6] and occasionally he draws the attention of the chairman of a private bill committee to an extraordinary provision; but he does not feel it his duty to try to secure a general uniformity in private bills.[389:7] In fact, he is so busy that he can examine personally only a small part of them.[389:8] The appointment of a Deputy Chairman has been an assistance in this way.[389:9] But the work is mainly done by the Counsel to Mr. Speaker, who reads all the bills; makes a careful analysis of them, noting the reports from the government departments; sees the agents about any amendments he has to suggest; and calls the attention of the Chairman of Ways and Means to any matters that may require it.[389:10] Sometimes he is consulted by the chairman of a private bill committee;[390:1] while the paid referee, on account of his large experience, had formerly some influence with the committees.[390:2]

[Sidenote: The Lord Chairman.]

But by far the most important officer of Parliament in this respect is the Chairman of Committees in the House of Lords, the Lord Chairman, as he is called. Being less busy with public affairs than the House Chairman, he is able to devote much more time to private bill legislation. He examines all the bills, even reading those introduced into the House of Commons before the Speaker's Counsel sees them;[390:3] and he is in constant communication with the Chairman of Ways and Means, and with the government departments.[390:4] He does not, as a rule, act directly upon the private bill committees,[390:5] but he confers with the promoters of the bills or their agents, and explains to them what changes he requires them to make. In such cases the promoters usually comply with his wishes. In fact they are practically obliged to do so or withdraw their bill, because the second and third readings of private bills in the House of Lords are always moved by the Lord Chairman, who would simply refuse to act if his advice were not accepted. Of course, some other peer might make the motion and carry it, but this is said to have happened only once within living memory.[390:6] The Lord Chairman examines provisional orders less thoroughly, and if they contain objectionable provisions he confers with the department that is responsible for them rather than with the promoters.[390:7]

The greatest obstacles which the Lord Chairman meets with come from what are known as "agreed clauses," that is, clauses agreed upon between opponents and promoters of the bill. These in most cases are accepted without much examination by the private bill committees. The Lord Chairman tries to strike them out when he deems them against public policy; but this is not always easy, because it may be an injustice to one of the parties who has consented not to urge or oppose other provisions on the faith of those clauses. Moreover, even if the clauses are struck out of the bill, they may still be operative in fact, as the persons interested often feel bound in honour to carry them out. The matter has a very important bearing on the subject of municipal trading,[391:1] that is, the supply of public utilities by companies and public bodies, and it will be noticed hereafter in that connection. It is curious that the protection of the public interest in private bill legislation should depend very largely on the action of one man, and that man not the holder of a representative office or responsible to the public, but a member of an hereditary chamber who practically holds his post as long as he pleases.

[Sidenote: Merits of the System.]

If the English system of private bill legislation has its defects, they are far more than outweighed by its merits. The curse of most representative bodies at the present day is the tendency of the members to urge the interests of their localities or their constituents. It is this more than anything else that has brought legislatures into discredit, and has made them appear to be concerned with a tangled skein of private interests rather than with the public welfare.[391:2] It is this that makes possible the American boss, who draws his resources from his profession of private bill broker. Now the very essence of the English system lies in the fact that it tends to remove private and local bills from the general field of political discussion, and thus helps to rivet the attention of Parliament upon public matters. A ministry stands or falls upon its general legislative and administrative record, and not because it has offended one member by opposing the demands of a powerful company, and another by ignoring the desires of a borough council.

[Sidenote: It Depends on the Support of the Committees by the House.]

Such a condition would not be possible unless Parliament was willing to leave private legislation in the main to small impartial committees, and abide by their judgment. If this were not true--and it would not be true in most other legislatures--the promoters and opponents of the bill would attempt to forestall or reverse the decisions of the committees on the floor of the House, and would try to enlist the support of the members in their favour. That is, indeed, occasionally done, and has called forth no small complaint. Perhaps the most notable instance of late years was that of the bills for the organisation of companies to supply electric power in Durham and South Wales. The bills were opposed on the ground both of public policy and of local interest, and were rejected by the House of Commons in 1899 under the powerful influence of the Association of Municipal Corporations. Public feeling was, however, aroused, and the bills were passed in 1901.

In the very nature of things Parliament must have power to overrule the private bill committees, and sometimes does so, but the permanence of the system depends upon the fact that it is not done often. The question, therefore, whether there is a growing tendency to override the committees is a very interesting one. Such meagre statistics as have been collected would appear to show that there has been a slight increase in the number of bills opposed on second and third reading, and in the number of instructions to committees that have been moved,[392:1] as well as in the amount of time spent in the House in debating these matters.[392:2] It seems, also, to be the general opinion of men in close touch with private bill practice, that the habit of overruling the committees has gained ground of late years, but fortunately not to any dangerous extent.[393:1]

FOOTNOTES:

[367:1] For the History of this subject see Clifford's "History of Private Bill Legislation."

[367:2] The distinction between public and private bills, and public and private acts is not the same. The former depends upon the nature of the procedure in Parliament; while acts are classified as (1) Public General Acts, (2) Local Acts, which have the same legal effect as public acts, but apply only to a particular locality, and may relate to an organ of local government or a company; (3) Private Acts--now few in number--which are of a personal nature, and are not taken notice of by courts unless specially pleaded. With some exceptions that will appear sufficiently in the text, the acts in classes (2) and (3) do, and those in class (1) do not, go through the procedure of private bills.

[368:1]

[Sidenote: Hybrid Bills.]

Cf. May, 634-43. Ilbert, "Leg. Methods and Forms," 29-32. Moreover, as measures intended primarily to affect particular places, may, on account of their far-reaching importance, be treated as public bills, so others designed for public objects may interfere in a peculiar way with private interests. Measures of either kind are sometimes, under the name of "Hybrid Bills," put through a mixed procedure. They are introduced as public bills, and then referred to a private bill committee, which is, however, larger than an ordinary committee of that kind, the members being appointed partly by the House and partly by the Committee of Selection. A procedure of this sort is required in the case of bills of the London County Council for raising loans (S.O.P.B. 194).

[368:2] To distinguish between the two classes of standing orders the numbers of those relating to public business are printed in the parliamentary papers in bold-faced type. But in the footnotes to this book those relating to private business are referred to as S.O.P.B. The references are to the standing orders as revised in 1903, because a number of changes were made in that year in pursuance of the recommendations of the Select Committee of 1902. The statements in this chapter relate to the procedure in the House of Commons; for the practice in the House of Lords is so nearly the same in almost all essential points, that it is enough to indicate the more important differences in the text or in the notes. A memorandum on the differences in detail may be found in the Report of the Committee on Private Business (Com. Papers, 1902, VII., 321, App. 15).

[369:1] The rules about notice are contained in S.O.P.B. 3-22. See also May, 680-81.

[369:2] S.O.P.B. 23-31.

[369:3] Ibid., 32-34.

[369:4] Ibid., 35-37, 55-59. By the so-called Wharncliffe Order a special meeting of the members of any company must be held to authorise or ratify an application for a private bill. Ibid., 62-68.

[369:5] S.O.P.B. 69-78.

[369:6] May, 682; cf. Clifford, 788-95.

[369:7] S.O.P.B. 69-78, 230-32. May, 683-91.

[370:1] The legislative procedure in the House is regulated by Part IV. (193-226) of the Standing Orders Relating to Private Business; the conduct of the Private Bill Office by Part V. (227-49); the judicial procedure before private bill committees, with the supervision thereof by the officers of the House, and the prescription of provisions that must, or must not, be inserted, by Part III. (69-162).

[370:2] Rep. of Sel. Com. on Priv. Business, Com. Papers, 1888, XVI., 1, Q. 340; Rep. of a similar Com., Com. Papers, 1902, VII., 321, Qs. 193, 1957-5. Formerly many more private bills began in the Commons than in the Lords, but now the numbers are not very far from the same. Ibid., Q. 337, and App. 8.

[370:3] Until 1903 the division of bills between the two Houses was not made until after Parliament met. Ibid., Qs. 166-68, 197. But the committee of 1902 recommended a change which was made (Ibid., Report Sect. 18 S.O.P.B. 79).

[371:1] S.O.P.B. 91-97. There is a committee with similar powers in the House of Lords, composed of forty peers, besides the Chairman of Committees who with any two other members forms a quorum. May, 796.

[371:2] S.O.P.B. 197. This is a change made in accordance with the report of the Select Committee of 1902. Before that time a vote, though a formal one, took place on the first reading.

[371:3] Clifford, I., 70-71, 256; II., 821-43. Rep. of Com. on Priv. Bill Leg., Com. Papers, 1888, XVI., 1, p. xix.

[372:1] In the Lords the committees on opposed bills consist of five members and the chairman has no casting vote. In the Commons he has both an ordinary and a casting vote, S.O.P.B. 124. In the Lords there is no Committee on Railway and Canal Bills.

[372:2] S.O.P.B. 98, 103, 105-6, 108, 110-13, 116-17, 208. Until a few years ago there was a paid referee who could sit on the committee with an advisory voice but no vote. May, 728. There were formerly two paid referees, and later only one.

[372:3] Clifford, I., 117.

[372:4] S.O.P.B. 98-106, 115, 208.

[373:1] May, 767. Ilbert, "Manual," Sec. 92, and p. 294. It is appointed by the Committee of Selection.

[373:2] S.O.P.B. 127-28. If the bill is brought from the House of Lords, or delayed in any other way, the petition must be filed within ten days of the first reading.

[373:3] May, 733.

[373:4] S.O.P.B. 87-89. Until 1902 the Speaker's Counsel and the paid referee were members, and the important members, of the court.

[374:1] Rep. Com. on Priv. Bill Leg., Com. Papers, 1888, XVI., 1, p. iv., and see the evidence before the Committee on Private Business, Com. Papers, 1902, VII., 321.

[374:2] S.O.P.B. 129-35. These precedents are collected in the reports of cases in the Court of Referees, by Rickards and Saunders, and Saunders and Austin.

[374:3] By the Borough Funds Act of 1872 the expense of promoting a private bill cannot be incurred by a local authority unless sanctioned by a meeting of the rate-payers. Glen, "Law of Public Health," 12 Ed., 483, 967-68. But this does not apply to matters for which provisional orders can be obtained. Ibid., 970; cf. Rep. of Com. on Priv. Business, Com. Papers, 1902, VII., 321, Qs. 2242, 2290-92, 2329-31. By the Borough Funds Act, 1903, no such sanction is required for opposing a private bill.

[374:4] Cf. May, 734-52.

[374:5] But usually only in case they appear as a class. S.O.P.B. 133; May, 735.

[375:1] Rep. of Com. on Municipal Trading, Com. Papers, 1900, VII., 183, Qs. 576, 582, 2377.

[375:2] If the Court of Referees thinks fit. S.O.P.B. 133a. This provision is not restricted to cases of competition.

[375:3] May, 691-93.

[375:4] By custom, parliamentary counsel are never appointed to the bench, and as they cannot enter Parliament without giving up their practice, they are shut out from a political career.

[375:5] May, 781-82.

[376:1] Cf. S.O.P.B. 154, 155, 157a, 158b, 173, 194c.

[376:2] S.O.P.B. 212.

[376:3] Ibid., 150, 157, 157a, 173a, 194c, 194d.

[377:1] Rep. Com. on Municipal Trading, Com. Papers, 1900, VII., 1, Qs. 569, 985.

[377:2] Cf. S.O.P.B. 79-86.

[377:3] The total number of private bills that come before the House of Commons runs from 150 to 250 a year, and of these about one half are unopposed in that House. There are also about 50 unopposed provisional orders.

[377:4] Cf. S.O.P.B. (1902) 109, 137. For bills originating in the House the third man was the member indorsing the bill. But this member, if interested, locally or otherwise, although taking part in other ways, could not vote. S.O.P.B. (1902) 139, now S.O.P.B. 138. For bills coming from the House of Lords he was Mr. Parker Smith, M.P. Rep. Com. on Priv. Business, Com. Papers, 1902, VII., 321, Qs. 23, 68-69, 368; and see the Return printed yearly in the Commons Papers of the persons who served on the committee for each unopposed bill.

In the Lords the Committee on unopposed bills consists of the Chairman of Committees and such lords as think fit to attend, but the work is practically done by the Chairman and his counsel. May, 801. Rep. Com. on Priv. Business, Com. Papers, 1902, VII., 321, Qs. 1961, 1984-85, 2096, 2099-2104.

[377:5] Com. Papers, 1902, VII., 321, pp. viii-ix.

[378:1] S.O.P.B. 109.

[378:2] Rep. Com. on Priv. Business, Com. Papers, 1902, VII., 321, Qs. 25, 27, 72-73, 1393, 1405-8.

[378:3] S.O.P.B. 83, 209.

[378:4] Rep. Com. on Priv. Business, Com. Papers, 1902, VII., 321, Qs. 75-76, 1410-12.

[378:5] Ibid., Q. 1391.

[378:6] S.O.P.B. 213.

[379:1] S.O.P.B. 81, 84, 85, 215-16, 218. Amendments made by the Lords must also be laid before the Chairman of Ways and Means. Ibid., 86. Before consideration bills must also be sent again to the government departments where they have to be deposited before they are introduced. Ibid., 84.

[379:2] S.O.P.B. 219. In the House of Lords there is no consideration or report stage, and substantial amendments may be made on third reading. Rep. of Com. on Priv. Business, Com. Papers, 1902, VII., 321, App. 15.

[379:3] Cf. May, Ch. xxix.

[379:4] Cf. Reps. of the Sel. Coms. of 1888 and 1902, Com. Papers, 1888, XVI., 1; 1902, VII., 321.

[379:5] Cf. Rep. of Com. on Priv. Business, Com. Papers, 1902, VII., 321, Apps. 8, 12.

[380:1] 62-63 Vic., c. 47. Section 15 of the act empowers the Lord Chairman of Committees and the Chairman of Ways and Means, acting jointly with the Secretary for Scotland, to make, subject to objection by either House, general orders for regulating proceedings under the Act. These orders, which are voluminous, may be found in Com. Papers, 1900, LXVII., 649. A few standing orders for Scotch bills are published as Part VI. of the Standing Orders relating to Private Business.

[381:1] Rep. of Com. on Priv. Bill Proc. (Scotland), Com. Papers, 1898, XI., 625.

[381:2] S.O.P.B. 253.

[381:3] The parliamentary returns show that of the dozen persons required each year to make three commissions on groups of petitions, it has been necessary to take only a couple of names from the extra parliamentary panel.

[381:4] By Sec. 8 if the commission report that the order be issued, he may amend their draft.

[382:1] S.O.P.B. 255-58.

[382:2] Com. Papers, 1904, VI., 409.

[383:1] E.g. Rep. of Com. on Police and Sanitary Bills, Com. Papers, 1898, XI., 555; Rep. of Com. on Priv. Business, Com. Papers, 1902, VII., 321, p. vii.

[383:2] The cases where land can be taken compulsorily without confirmation by Parliament, are few, and are in the main confined to widening highways, enlarging public buildings, providing for national defence, furnishing allotments to labourers, and acquiring land for parish purposes. The most striking departure from the rule is in the Act of 1896 for the construction of light railways. Cf. Ilbert, "Leg. Methods and Forms," 320.

[383:3] This applies to many matters connected with local government. It is true also of the construction of light railways. 59-60 Vic., c. 48, Sec. 9.

[383:4] This is true, for example, of certificates granted by the Board of Trade to railways, for raising capital, working agreements, and other matters.

[384:1] To this class belong the orders for providing dwellings for the working classes, granting charters to municipal boroughs, changing the boundaries of divided parishes, constructing tramways in Ireland, etc.

[384:2] For a description of the various statutes giving authority to issue provisional orders see Clifford, Ch. xviii., and May, Ch. xxvi., and for a more exhaustive list of those relating to the Local Government Board see Rep. of Com. on Priv. Business, Com. Papers, 1902, VII., 321, App. 10.

[384:3] The only ones that apply are S.O.P.B. 38 and 39 about replacing workmen's dwellings and the deposit of plans.

[385:1] S.O.P.B. 208a.

[385:2] In the House of Lords an unopposed bill, like a public bill, is referred after second reading to a Committee of the Whole. An opposed order goes to a private bill committee, and then, with the rest of the bill to a Committee of the Whole.

[385:3] S.O.P.B. 151.

[386:1] Rep. of Com. on Priv. Business, Com. Papers, 1902, VII., 321, App. 11.

[386:2] Ibid., p. 185.

[386:3] Ibid., App. 6.

[386:4] Ibid., App. 15, and see the tables appended to the standing orders.

[387:1] Return of Expense of Private Bill Legislation, 1892-98, Com. Papers, 1900, LXVII., 111, p. 7.

[387:2] Ibid., 187, p. 66. See also the returns for the preceding seven years in Com. Papers, 1892, LXIII., 51.

[387:3] Clifford, II., 800.

[387:4] At the local inquiries held by the departments for the purpose of issuing provisional orders, any resident of the district has, in some cases, at least, a right to be heard. Macassey, "Private Bills and Provisional Orders," 388, 418.

[388:1] Rep. of Com. on Municipal Trading, Com. Papers, 1900, VII., 183, Qs. 421, 423.

[389:1] Rep. of the Com. on Municipal Trading, Com. Papers, 1900, VII., 183, Q. 987; Rep. of the Com. on Priv. Business, Com. Papers, 1902, VII., 321, Qs. 2368-69, 2403-4.

[389:2] Rep. of Com. on Priv. Business, 1902, VII., 321, Qs. 2378, 2401-2.

[389:3] Rep. of Com. on Municipal Trading, 1900, VII., 183, Qs. 233-34.

[389:4] Cf. Ibid., Qs. 3, 103, 145, and 1063.

[389:5] S.O.P.B. 80.

[389:6] Rep. of Committee on Priv. Business, 1902, VII., 321, Qs. 403-5.

[389:7] Ibid., Qs. 391-94.

[389:8] Ibid., Q. 2327.

[389:9] Ibid., Qs. 85-87.

[389:10] Rep. of Com. on Priv. Bill Legislation, Com. Papers, 1888, XVI., 1, Qs. 340-42.

[390:1] Rep. of Com. on Priv. Bill Legislation, Com. Papers, 1888, XVI., I., Qs. 348. Rep. of Com. on Municipal Trading, 1900, VII., 183, Q. 545.

[390:2] Rep. of Com. on Municipal Trading, 1900, VII., 183, Qs. 2372, 2393, and 2399.

[390:3] Rep. of Com. on Priv. Business, 1902, VII., 321, Q. 248.

[390:4] Rep. on Municipal Trading, 1900, VII., 183, Q. 3915.

[390:5] Ibid., Qs. 290-91 and 3923-24.

[390:6] Ibid., Qs. 284-85, 390, 3912, 3920, 3922; Rep. of Com. on Priv. Business, 1902, VII., 321, Qs. 77-80, 214-15.

[390:7] Rep. on Municipal Trading, 1900, VII., 183, Qs. 454-55 and 3917-18.

[391:1] Cf. Rep. on Municipal Trading, 1900, VII., 183, Qs. 298, 341-44, 347, 3939-41.

[391:2] For a careful study from this point of view of a fairly good legislative body, by one of its members well fitted to observe, see an article by Francis C. Lowell, in the Atlantic Monthly, LXXIX., 366-77, March, 1897.

[392:1] In the five years 1891-95 the number of bills opposed on second reading averaged 17-3/5, while from 1897-1901 they averaged 32. Rep. of Com. on Priv. Business, 1902, VII., 321, Q. 218.

[392:2] Rep. of Com. on Priv. Business, 1902, VII., 321, App. 2. But these periods are too short to warrant any accurate conclusion. In not more than eight or nine per cent. of the cases does the opposition seem to have succeeded. Ibid., Q. 219-20.

[393:1] Cf. Rep. of Com. on Priv. Bill Leg., Com. Papers, 1888, XVI., 1, Qs. 346-47, 487-88, 553, 1244. Rep. of Com. on Municipal Trading, 1900, VII., 183, Qs. 519, 523-26, 529. Com. on Priv. Business, 1902, VII., 321, Qs. 42-43. In conversation the writer found the opinion that the habit was increasing substantially universal.

When the Speaker's Counsel hears that opposition in the House is likely to be made, he sometimes tries to prevent it by arranging for a conference between the promoters and opponents in the presence of the Chairman of Ways and Means. Rep. of Com. on Priv. Bill Legislation, 1888, XVI., 1, Q. 346.

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XXI. THE HOUSE OF LORDS

Tracing its origin to the ancient council of the magnates of the realm, the House of Lords has, in the fulness of time, undergone several changes of character.[394:1] From a meeting of the Great Council of the King, it became an assembly of his principal vassals, the chief landholders of the Kingdom, ecclesiastical and lay; and finally it was gradually transformed into a chamber of hereditary peers, enjoying their honours by virtue of a grant from the Crown. Each phase has left a trace upon its organisation or functions, or upon the privileges of its members.

[Sidenote: Composition of the House.]

Before the Reformation the ecclesiastics in the House of Lords,[394:2] including the abbots and priors, usually outnumbered the laymen; but upon the dissolution of the monasteries, and the disappearance therewith of the abbots and priors, the proportions were reversed, and the hereditary element became predominant. At present the House contains several kinds of members, for it must be remembered that every peer has not a right to sit, and all members of the House are not in every respect peers.

[Sidenote: The Hereditary Peers.]

First there are the peers with hereditary seats. They are the peers of England, created before the union with Scotland in 1707; the peers of Great Britain created between that time and the union with Ireland in 1801; and the peers of the United Kingdom created thereafter. They rank as dukes, marquises, earls, viscounts, and barons, whose precedence, with that of their wives and children, furnishes abundant interest to those who care for such things. The Crown, that is, the ministry of the day, has unlimited power to create hereditary peerages with any rules of descent known to the law in the case of estates in land,[395:1] and since the accession of George III. the power has been freely used. All but seventy-four out of nearly six hundred seats belong to this class, which is now the only channel for an increase in the membership of the House.

[Sidenote: The Representative Peers of Scotland.]

When the union with Scotland was made in 1707, the Scotch peers were more numerous in proportion to population than the English; and therefore, instead of admitting them all to the House of Lords, it was provided that they should elect sixteen representatives of their order for the duration of each Parliament. No provision was made for the creation of new Scotch peers, so that with the dying out of peerages, and the giving of hereditary seats to Scotch noblemen by creating them peers of the United Kingdom,[395:2] the number of Scotch peers who have no seats in their own right has fallen from one hundred and sixty-five to thirty-three. Within another generation they may not be more than enough to furnish the sixteen representatives.

[Sidenote: Of Ireland.]

The same problem arose upon the union with Ireland a hundred years later; but the Scotch precedent was not followed in all respects; for the act provided that the Irish peers should elect twenty-eight of their number representatives for life, and an arrangement was also made for perpetuating the nobility of Ireland within certain limits. Not more than one new Irish peerage was to be created for every three that became extinct, until the number--exclusive of those having hereditary seats in the House of Lords under other titles--had fallen to one hundred, a limit above which it can never be raised.[396:1] There is another important difference between the Scotch and Irish peers. The former are wholly excluded from the House of Commons, but the latter can sit for any constituency in Great Britain, though not in Ireland. Under this provision Irish peers have, in fact, often sat in the Commons, the most famous case being that of Lord Palmerston. The Irish peerage thus affords an opportunity to ennoble a statesman, without putting an end to his political career in the popular chamber.

[Sidenote: The Bishops.]

The dissolution of the monasteries, by removing the abbots and priors from the House of Lords, left the bishops the only spiritual peers; and as such they have held their seats to the present day. By the time the union with Scotland was made, the established church of that kingdom was Presbyterian in form, and no Scotch ecclesiastics were added to the House of Lords. But the Irish established church was Episcopal and Protestant, and hence at the union with Ireland in 1801 four places were given to her bishops, who filled them by rotation sitting for a session apiece. With the disestablishment of the Irish Church in 1869 its representatives vanished from Parliament, leaving the English prelates as the only spiritual peers in the House of Lords.[396:2] Meanwhile the greater attention paid to the needs of the Church has brought about the creation of new bishoprics in England; but in order not to increase the number of spiritual peers, it has been provided that while the Archbishops of Canterbury and York, with the Bishops of London, Durham, and Winchester, shall always have seats in the House of Lords, of the rest only the twenty-one shall sit who are seniors in the order of appointment.[396:3] The spiritual peers are members of the House solely by virtue of their office, and so long as they retain it. Except, in fact, for the five great sees they are members only by virtue of seniority in office. At times the Nonconformists have tried to exclude them altogether; but with the growth in the number of lay peers their relative importance has diminished, and it is not probable that they will be removed, unless as part of a larger movement for the reform of the House of Lords, or the disestablishment of the Church.

[Sidenote: Life Peers.]

[Sidenote: The Case of Baron Wensleydale.]

Since the House of Lords is not only a legislative chamber, but also the highest court of appeal for the British Isles, it is well that it should contain at all times the legal talent required for the purpose. An obvious method of accomplishing the result, without permanently enlarging the House, or hampering the career of heirs who may not have the wealth to support the dignity, is by giving seats for life to eminent judges. With this object Sir James Parke, a distinguished baron of the Court of Exchequer, received in 1856 a patent as Baron Wensleydale for life. Much learning has been expended upon the question whether the Crown has ever exercised the power to create a life peer with a seat in the House of Lords,[397:1] and whether, if it ever existed, the power has become obsolete; but the Wensleydale case was settled by a vote of the House that the Letters Patent did not enable the grantee to sit and vote in Parliament. Sir James Parke was thereupon created Baron Wensleydale with an hereditary title, and the appointment of Law Lords as life peers was postponed a score of years.

[Sidenote: The Lords of Appeal.]

At last the need for increasing the legal members of the House became so clear that in 1876 an act was passed to authorise the appointment of two, and ultimately of four, Lords of Appeal in Ordinary for life.[397:2] They hold the position, and enjoy a salary of six thousand pounds, on the same tenure as other judges; and since 1887 they have also had a right to sit in the House as long as they live, irrespective of their tenure of the office. The motive for their creation was simply to strengthen the House of Lords as a court of appeal. Proposals for life peerages on a more extended scale have also been made in connection with plans to reform the House of Lords as a branch of Parliament. So far these have come to nothing; and, as we shall see hereafter, it is by no means clear that they would attain the end in view, or that, if they did, they would be wise.

[Sidenote: The House Determines the Qualification of its Members.]

The authority of the House of Lords to determine the validity of new patents has already been referred to in connection with the Wensleydale case. It is also empowered by statute to pass upon the election of Scotch and Irish representative peers. Disputed claims to the succession of hereditary peerages, on the other hand, may be settled by the Crown on its own authority, but it is the habit at the present day to refer these likewise for decision to the Lords.[398:1]

[Sidenote: Disqualifications.]

Infants, aliens, bankrupts, and persons under sentence for grave offences, are incapable of sitting in the House of Lords;[398:2] and instances occurred in the seventeenth century of special sentence of exclusion by the House itself. But more important from a political point of view than the disqualifications for the upper chamber is the fact that a peer cannot escape from the peerage. This is sometimes a misfortune when a man, who has made his mark in the House of Commons, has an obscure greatness thrust upon him by the untimely death of his father. In such a case he loses at once and forever his seat in the House where the active warfare of politics goes on, and this although he may be a Scotch peer, who has no seat in the House of Lords. The question was debated at some length in 1895, when Lord Selborne tried to retain his seat in the Commons by omitting to apply for a writ of summons as a peer; but the Commons decided that he could not do so.[398:3]

[Sidenote: Personal Privileges of the Peers.]

Besides the liberty of speech and freedom from arrest which they possess in common with the members of the other House, the peers, partly in memory of their position as councillors of the Crown, partly as an aftermath of feudal conditions, retain certain personal privileges, of small political importance, but sometimes of interest to the person concerned. One of these is the right of access to the sovereign for the purpose of an audience on public affairs. Another is the right to be tried by their peers in all cases of treason or felony.[399:1] If Parliament is in session, the trial is conducted by the whole House of Lords, presided over by the Lord High Steward appointed by the Crown. If not it takes place in the court of the Lord High Steward, to which, however, all the peers are summoned.[399:2] The privilege extends to the Scotch and Irish peers, whether chosen to sit in the House of Lords or not; to the life peers; to peeresses in their own right; and to the wives and widows of peers, unless they have "disparaged" themselves by a second marriage with a commoner; but it does not extend to the bishops, or to Irish peers while members of the House of Commons.[399:3]

[Sidenote: Functions of the House.]

The House of Lords is both a coordinate branch of Parliament and a court of law. Its duties as a court of appeal will be described in another chapter with the rest of the national judicial system, and its original jurisdiction, in the trial of peers and of impeachments brought by the House of Commons, is no longer of much consequence. The evolution of the political responsibility of ministers has made impeachment a clumsy and useless device for getting rid of an official, while the greater efficiency of the criminal law has made it needless for punishing an offender; and in fact the last case where it was used was that of Lord Melville, one hundred years ago. It may be noted, however, in this connection that the House still retains the right to require the attendance of the judges, not only when acting in a judicial capacity, but on all occasions when it may need their advice.

[Sidenote: Money Bills.]

Since the House is a coordinate branch of the legislature, every act of Parliament requires its assent, and although in practice it is far less powerful than the House of Commons, the only subject on which the limitations of its authority can be stated with precision is that of finance. As far back as 1671 the Commons resolved "That, in all aids given to the King, by the Commons, the Rate or Tax ought not to be altered by the Lords";[400:1] and in 1678 they adopted another resolution that all bills granting supplies "ought to begin with the Commons. And that it is the undoubted and sole right of the Commons, to direct, limit, and appoint, in such Bills, the Ends, Purposes, Considerations, Conditions, Limitations, and Qualifications of such Grants; which ought not to be changed, or altered by the House of Lords."[400:2] The Commons have clung to this principle ever since, enforcing it by a refusal to consider bills in which the Lords have inserted or amended financial provisions; and although the Lords have never expressly admitted the claim, they have in fact submitted to it.[400:3]

[Sidenote: Paper Duties Bill in 1860.]

The upper House can, of course, reject a money bill altogether, but the history of the last case where they did so shows the futility of such a power by itself. In 1860 the ministry brought in a bill to repeal the duties on paper, which hindered the development of a cheap newspaper press, and the Lords rejected it in spite of the fact that the budget already passed imposed additional taxation to make up for the loss of revenue from paper. The next year the repeal of the paper duties was simply included in the annual tax bill, and forced through in that way. It is now the regular practice to include all the taxation in one bill, and as the peers never venture to reject as a whole either this, or any of the great measures granting supplies, it is truly said that the House of Lords cannot initiate or amend, and practically cannot reject, any money bill. The principle applies not only to the national receipts and expenditures, but also to local rates,[401:1] but it does not apply to revenues of the Crown or the Church, nor at the present day to penalties or fees not payable into the Exchequer.[401:2]

[Sidenote: Tacking.]

It might be supposed that the Commons could carry any piece of legislation by tacking it to a money bill. This was formerly done; but the Lords have long had a standing order forbidding such a practice, and no attempt has been made of late years to revive it.[401:3] Moreover the rule about money bills is not strictly enforced where the financial provision is merely incidental to general legislation. The Lords are free to omit such a clause altogether,[401:4] or if it is so interwoven with the rest of the measure that it cannot be treated separately, the Commons have often waived their rights and taken into consideration amendments made by the Lords.[401:5] For the sake of convenience they have gone farther still, for they suffer expedients to be used, that really evade, while recognising, their privilege. Bills are sometimes introduced in the House of Lords with financial provisions which are struck out on third reading. In the Commons these provisions are printed as ghosts, underlined or in brackets, to indicate that they are not at the moment a part of the bill, but that a motion will be made in committee to reinsert them.[401:6] What is more, the Commons have adopted a standing order that it will not insist on its privileges in the case of private, or provisional order, bills which impose tolls, or authorise rates by local authorities for local purposes.[401:7]

The rule about money bills applies only to measures actually before Parliament. It does not prevent the House of Lords from expressing an opinion upon financial matters either in debate or by resolution, or from inquiring into them by means of select committees.[402:1] In 1903, indeed, was seen the curious spectacle of the House of Lords debating freely Mr. Chamberlain's fiscal policy, while the Opposition in the Commons was striving almost in vain for an opportunity to do so.

[Sidenote: Officers of the House of Lords.]

Except when a peer is being tried the Lord Chancellor presides over the House. In practice he is always made a peer, but this is not a legal necessity, and, in fact, the woolsack, on which he sits, is commonly said not to be within the House itself. Perhaps for this very reason he has not the authority of the Speaker of the Commons in ruling upon points of order. He does not even decide which peer shall speak, but if more than one rise at once, and refuse to give way, the question who shall have the floor is decided by the House itself, if necessary by division.[402:2] Order in debate, also, is enforced not by him but by the Lords themselves. Moreover, he has no casting vote, and it is characteristic of his position that the peers do not address him, but speak to "My Lords." In short, his functions are limited to formal proceedings, and even in these he can be overruled by the House.[402:3] If a peer he can, of course, as such, take part in debate; but otherwise not. During his absence one of the deputy speakers, appointed by the Crown, takes his place, or if none of these be present the House appoints a speaker pro tempore.[402:4]

The other principal officers of the House are the Lord Chairman of Committees, chosen by the House itself, who presides in Committee of the Whole, and who, as we have seen, has great influence over private bill legislation; the Clerk of the Parliaments, who acts as Clerk of the House; the Gentleman Usher of the Black Rod, who acts as messenger of the House on great and formal occasions; and the Sergeant-at-Arms; all these last three being appointed by the Crown.

[Sidenote: Quorum.]

The quorum of the House is fixed at the absurdly small number of three, but this is to some extent delusive, for the presence of thirty Lords is necessary for an effectual division upon any stage of a bill. Formerly the House occasionally imposed fines upon its absent members, a practice that has fallen into disuse. The privilege of voting by proxy has also disappeared. It was abolished by standing order in 1868.[403:1]

[Sidenote: Procedure.]

The procedure upon bills is in general similar to that in the House of Commons. There are two readings, and then a Committee of the Whole, followed by a third reading; and there is the familiar rule that no member can speak more than once to the same question, except in Committee of the Whole. The chief difference from the Commons consists in the rule adopted in recent years for referring bills after the committee stage, and before report, to a standing committee appointed by the Committee of Selection.[403:2] This gives an opportunity to revise the drafting of a bill that has been battered out of shape in its passage through Parliament. As a matter of practice, however, the reference to a standing committee is usually omitted, for the Lords are quite in the habit of shortening the process of legislation by special vote of the House. The committee stage is often left out altogether; and in money bills this always is done. On the appropriation bills, indeed, there is rarely any debate, and all the stages are not infrequently taken on one day.

[Sidenote: The Peers have Abundance of Time.]

The Lords have no constituents to impress, and hence there are not so many members as in the Commons who want to take part in debate. Moreover, they are not obliged to devote a large part of their time to supply and to the budget; and as their chamber is not the place where the great political battles are fought, the Opposition does not oppose at every possible step. They can, therefore, get through their work at leisure. They make use, indeed, of select and sessional committees in much the same way as the Commons; but, having time enough to consider every bill in Committee of the Whole, they do not need time-saving machinery like the Standing Committees on Law and Trade. For the same reason, and because there is no disposition to wilful obstruction, they do not require and do not have a closure to cut off debate. Their sittings also are short. On Wednesday and Saturday they seldom meet at all, while on other days their usual hour of meeting is half-past four, and they rarely sit after dinner-time.

[Sidenote: Their Action is Little Fettered by Rules.]

On the other hand, the very fact that the fate of ministers does not hang upon their votes renders possible a much larger freedom of action than in the Commons. There is not the same need of precaution against hasty, ill-considered motions, or against votes that might embarrass the government without implying a real lack of confidence. Hence there is no restriction upon the motions that can be brought forward, save that notice must be given beforehand;[404:1] and any question to a minister may be followed by a general debate, provided again that notice of the question has been given in the orders of the day.[404:2]

FOOTNOTES:

[394:1] The best history of the House is Pike's "Constitutional History of the House of Lords."

[394:2] The question whether they sat by virtue of their tenure of land, or of their offices in the Church, has been a subject of some discussion. Cf. Pike, 151 et seq. Anson, I., 220-22.

[395:1] And possibly with others. Cf. Anson, I., 197-200.

[395:2] At one time the House of Lords held that a Scotch peer could not be given an hereditary seat as a peer of Great Britain; but this decision was afterwards reversed. Pike, 361-62. A peer so created can still vote for representatives as a Scotch peer. Ibid., 362-63. And there has been some doubt whether, if a representative peer, he vacates his seat at once. Ibid., 362, May, 13.

[396:1] The number is now less than one hundred.

[396:2] The Bishop of Sodor and Man has a seat, but no vote.

[396:3] There are now ten English bishops who do not sit in the House of Lords.

[397:1] Cf. Pike, 369-76. Stubbs, "Const. Hist.," 5 Ed., III., 454.

[397:2] Before appointment they must have held high judicial office for two years, or have practised at the English, Scotch, or Irish bar for fifteen years.

[398:1] Pike, 285-87; Anson, I., 227-28. These cases are referred to the Committee of Privileges.

[398:2] The Act of 1870 abolished corruption of blood, so that a sentence no longer cuts off the heirs.

[398:3] Hans. 4 Ser. XXXIII., 1058 et seq., 1174 et seq., and 1728 et seq. Cf. Rep. of Com. on Vacating of Seats, Com. Papers, 1895, X., 561.

[399:1] For misdemeanors, peers, like other persons, are tried by an ordinary jury.

[399:2] Upon conviction a peer is now liable to the same punishment as other offenders.

[399:3] For the history of the subject in general see Pike, Chs. x., xi., and for that of the bishops, Ibid., 151-68, 179-94, 219-23.

[400:1] 9 Com. Journals, 235.

[400:2] 9 Ibid., 509.

[400:3] Cf. May, "Const. Hist.," I., Ch. viii., 444.

[401:1] May, "Parl. Prac.," 542.

[401:2] Ibid., 547, 549-50.

[401:3] Ibid., 552-53.

[401:4] Ibid., 551-52.

[401:5] Cf. Ibid., 544-46.

[401:6] For the same purpose the Lords sometimes insert a clause, in a bill or amendment, that a financial provision really essential to their plan shall not be operative, and then the Commons strike the clause out. May, 547-49.

[401:7] S.O.P.B. 226. Sometimes, also, at the request of the member in charge of a bill, the Commons consent to waive a privilege on which they might have insisted.

[402:1] May, 541.

[402:2] Ibid., 296-97.

[402:3] Ibid., 186, 307.

[402:4] A Lord Keeper of the Great Seal has the same rights to preside as the Lord Chancellor, and if the Seal be in commission the Crown appoints a Lord Speaker. May, 184-86.

[403:1] Two days' notice must be given of a motion to suspend this order. May, 350-51.

[403:2] May, 376, 377.

[404:1] May, 204, 205.

[404:2] Ibid., 206.

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XXII. THE CABINET AND THE HOUSE OF LORDS

[Sidenote: Effect of The Reform Act of 1832.]

By sweeping away rotten boroughs, and giving representatives to new centres of industry, the Reform Act of 1832 made a great change in the position of the House of Lords; not by lessening its power--for since the Great Rebellion the Lords as a branch of the legislature has never had much power--but by the change in the composition of the House of Commons which opened a door to conflicts between the two bodies. In the old unreformed days the Lords and Commons were in general accord, because both were controlled by a territorial aristocracy whose chief members were peers. That element remained, no doubt, strong in the Commons after the Act of 1832, but it was no longer overmastering, and it had to use its authority in a more popular spirit, so that the two Houses ceased to be controlled by the same force. By bringing about this result the Reform Act drew attention to the fact that an hereditary body, however great the personal influence of its members, could not in nineteenth century England be the equal in corporate authority of a representative chamber. It became apparent that the House of Lords might on important issues differ in opinion from the House of Commons, and that in such cases an enduring desire of the nation, as expressed in the representative chamber, must prevail.

[Sidenote: Power of the Lords Thereafter.]

This did not mean that the House of Lords must submit to everything that the Commons chose to ordain; that it was to become a mere fifth wheel of the coach; on the contrary, in matters not of great importance, or on which the Commons were not thoroughly in earnest, it exercised its own judgment, sometimes in cases that caused no little friction between the Houses. In 1860, for example, it rejected the bill to repeal the duties on paper; in 1871 it refused to concur in the abolition of the purchase of commissions in the Army; and in 1880 it rejected the bill to compensate evicted Irish tenants. In all these cases the policy of the House of Commons was ultimately carried out; and the peers recognised fully that their action on great measures was tentative; that they must not go too far; and that if public opinion was persistent they must in the end give way. As Mr. Sidney Low well says: "The House of Lords, ever since the struggle over the great Reform Bill, has been haunted by a suspicion that it exists on sufferance."[406:1]

[Sidenote: The House of Lords is Conservative.]

From the fact that it represents, in the main, the interests of property, and especially of landed property, the House of Lords tends naturally to be conservative, in the sense that it is adverse to popular demands which appear dangerous to interests of that kind, or indeed to the established order of things; but more than this, the peerage as a mass tends from its social position in the nation to gravitate toward the political party that clings to the nobility and the Church as pillars of the state. During the half century that followed the first Reform Act, the Liberals were in power much the greater part of the time, and they created by far the larger number of peers;[406:2] yet the House of Lords remained firmly Conservative throughout; for even Liberal peers--and still more their descendants--are drawn by a steady current to the other side; a current that was accelerated, but not caused, by the Home Rule Bill.

The House is, in fact, overwhelmingly Conservative. Of the hereditary peers more than four fifths belong to the Unionist party; and the disproportion is increased by the representatives from Scotland and Ireland. In the case of Ireland this is the inevitable result of the method of choosing, because elections occur only one at a time on the death of a representative peer, and his successor is always taken from the dominant--that is, the Unionist--party. In Scotland, there being no provision for minority representation, the same result takes place, the majority electing all the sixteen peers for the Parliament from its own side; and thus the representative peers from both kingdoms, forty-four in number, are Unionists to a man.

[Sidenote: Meaning of the Term "Conservative."]

It is commonly said that the House of Lords is a conservative body which acts as a drag on hasty legislation, and holds back until the nation shows clearly that it has made up its mind. This is undoubtedly true, and if it were the whole truth the limited authority retained by the House would provoke no strong resentment in any quarter; but it is only a part of the truth. The word "conservative" has two distinct meanings in England, according as it is spelled with a small or a capital C. The first signifies an aversion to change; the second, one of the two great political parties in the state. Now, for more than a generation after the Reform Act of 1832 these two meanings of the word were not very far apart. The Conservative party was to such an extent the party of resistance to change as to make plausible, if not accurate, Macaulay's comparison of the two parties that divided the nation to the fore and hind legs of a stag, the Liberals being always in advance, and the Conservatives following their footsteps at a distance. The simile expressed one aspect of a not uncommon feeling, that the direction of the national policy rested normally with the Liberals, but that when they went too fast the Conservatives would come to power for a short time, while the country adjusted itself to its new conditions. That under these circumstances the House of Lords should act with the Conservative party, and should help them to play the part of a brake from time to time, not in order to stop, but only to slow down, the coach on a hill, was natural, and not open to serious objection. But Disraeli's constant preaching against a merely negative policy, coupled with the need of seeking for working-class support after the extension of the franchise by the Reform Act of 1867, led to the abandonment by the Tories of the attitude of resistance to change. Even if it be true that the new Tory democracy is, on the whole, less progressive than the Liberal party, it is certainly not opposed to all progress. In more than one direction, indeed, it is distinctly more favourable to change. If the stag has not become double-headed, he has, at least, learned to walk with either end in front; and this change in the Tory party has had a marked effect upon the position of the House of Lords.

[Sidenote: The House has Become a Tool of the Conservative Party.]

Although the Conservatives have outgrown their negative attitude of resistance to change, and have become an aggressive party with a positive policy, they have retained and even strengthened their control of the House of Lords. The House has not, of course, lost all volition so completely as merely to register the commands of the Unionist leaders. To some extent it has its own opinions, which are now more conservative than theirs; and even when they are in power it amends the lesser details of their bills with a good deal of freedom, sometimes making its own views prevail. In 1899, for example, it struck out of the London Local Government Bill the provision allowing women to vote for the borough councils, a change that the Commons accepted with reluctance; and in 1902 it succeeded in making amendments to the Elementary Education Bill, which threw upon the rates the burden of current repairs in the Church schools, and preserved some control by the bishops over religious instruction therein.

But while the House of Lords has a will of its own in smaller questions, on the great party struggles that rend the country it throws its weight wholly on the side of the Tories, and plays into their hands. Thus, from 1892 to 1895, and again in 1906,--the only two occasions on which the Liberals have been in office for a score of years,--the House of Lords used its power boldly to hobble the government. That it did so to help the Unionist party, and not simply from conservative objection to change, is curiously brought out by its treatment of the principal measures of 1906. Besides the Education Bill, where the conflict of opinion lay very deep, two other government measures that aroused some feeling came to it from the Commons. One of them, the Trades Dispute Bill, which provided that a trade union should not be liable to suit for any action it might take during a strike, was certainly a radical measure, and one to which a chamber of conservative temperament might well object; but the Lords passed it without amendment. The other, the Plural Voting Bill, designed to prevent a man from voting in more than one place, involved no very profound question of principle, and made no very far-reaching change in English institutions, but was a bone of contention between the parties because it affected the chances of election in close districts. This bill the House of Lords summarily rejected.

The fact is that since the Reform Act of 1832 government by party has become highly developed; and although the differences between the principles of the two parties may be less fundamental than they were formerly, the voting in Parliament runs very much more strictly on party lines.[409:1] Politics have become more completely a battle between parties, in which it is more difficult than ever to avoid taking sides, while the combatants try to make use of every weapon within their reach. Now the very accentuation of party has made it easier for the peers to resist a Liberal ministry, because in doing so they are evidently opposing, not the people as a whole, but only a part of the people, and a part that is a majority by a very small fraction. In this way it has happened that the House of Lords, without ceasing to have an opinion of its own on other matters, has become for party purposes an instrument in the hands of the Tory leaders, who use it as a bishop or knight of their own colour on the chess-board of party politics.

[Sidenote: Position of the House in Forcing a Referendum.]

A cabinet never thinks of resigning on account of the hostility of the Lords; nor is its position directly affected by their action. Indirectly, however, it may be very seriously impaired, if the peers, claiming that the government is not really in accord with the electorate, reject important measures, and thereby challenge a dissolution of Parliament. By doing so they may reduce a ministry, that is not in a condition to dissolve, to a state of political impotence, both in fact and in the eyes of the nation. This was true of the Liberal administration in 1893-94, when the peers rejected the Home Rule Bill, and made amendments that struck at the root of the Parish Councils and Employers' Liability Bills, changing the latter in a manner so vital that the government finally withdrew the measure altogether. The Liberals protested that the House of Lords thwarted the will of the people, and ought to be ended or mended. The alliteration helped to make the phrase a catchword, but the cry excited popular enthusiasm so little that at the dissolution in 1895 the country upheld the same party as the House of Lords, and returned a large Unionist majority to Parliament.

For the Lords to appeal to the people at a moment when the people were of their party was naturally not an unpopular thing to do, and for some time after the fall of Lord Rosebery's government they rather gained than lost ground in the esteem of the public. The Conservatives, indeed, declared that the House had renewed its youth, and had become once more an important organ of the state by asserting its right to appealing from the cabinet and the majority in the Commons to the nation itself. The Lords were said to have attained the function of demanding a sort of referendum on measures of exceptional gravity; but useful as such a function might be, if in the nature of things a possible one, the existing House of Lords cannot really exercise it, because their object in doing so is essentially partisan. In attempting to appeal to the electorate, they act at the behest of one party alone. Thus in 1893 the Lords were quite ready to force the issue whether the cabinet retained the confidence of the country; but in 1905 when a series of adverse by-elections made it exceedingly doubtful whether the Conservative government had not lost its popularity, nothing was further from their intention than to cause a dissolution.

Now, a power to provoke a referendum or appeal to the people, which is always used in favour of one party and against the other, however popular it may be at a given moment, and however much it may be permanently satisfactory to the party that it helps, cannot fail in the long run to be exceedingly annoying to its rival; nor is it likely to commend itself to the great mass of thinking men as a just and statesmanlike institution. The House of Lords is a permanent handicap in favour of the Tories, which is believed to have helped them even in elections for the House of Commons. The workingmen have been told that although the Conservatives promise them less, they are better able to fulfil their promises than the Liberals who cannot control the House of Lords. These things must be borne in mind in discussing a possible reform of the upper House; but before coming to that question it will be well to look at the Lords under some other aspects--at their non-partisan activity, their treatment of private members' bills, and of private bill legislation, and at the personal influence of the leading peers.

[Sidenote: Non-political Legislation.]

So far we have considered only government bills, backed by the authority of a responsible ministry, which the upper House must treat with circumspection. The Lords do not feel the same restraint in regard to private members' bills sent to them from the Commons. These lie beyond the immediate range of party conflicts, and although they may occasionally deal with important subjects, neither the cabinet nor the parties take sides officially upon them. The Lords can, therefore, amend or reject them without fear; but it has become so difficult for a private member to get through the Commons any bill to which there is serious opposition, that this function of the upper House is not of great use. Still less vital is its power to initiate measures. In order the better to employ the time of the Commons the government introduces some of its secondary bills first in the Lords;[412:1] but measures proposed by individual peers have little chance of success. It is hard enough for a private member of the Commons to put his bill through its stages in that House, with all the sittings reserved for the purpose in the earlier part of the session; and it is even harder to pass a bill brought from the Lords at a later date. The result is that of the few private members' bills enacted each session only about one sixth originate with the peers.

[Sidenote: Private Bill Legislation.]

The relation of the House of Lords to private bill legislation is very different, for bills of that kind are in a region quite outside of politics. In their case, as already observed, the action of the Lords is, if anything, even more important than that of the Commons; and, in fact, the private bill committees of the upper House inspire in general a greater confidence, because the members are men of more experience.[412:2] While, therefore, the House of Lords occupies a subordinate place in regard to public measures of all kinds, and a position of marked inferiority in the case of government bills, in private and local legislation, which in England is of great importance, its activity is constant and highly useful.

[Sidenote: Personal Influence of the Peers.]

The personal influence of the Lords is far greater than their collective authority. With the waning of the landed gentry the respect for the old territorial aristocracy has been replaced by a veneration for titles, and this has inured to the benefit of the peerage. One sees it even in business affairs, although the Lords as a class are little qualified by experience for dealing with matters of that kind, the nobility having until recently been debarred by tradition from commercial life. One of the devices of that arch promoter Hooley for inducing the public to embark in his schemes was to include a number of peers in his list of directors--guinea-pig directors, as they were called, because their most visible function was to pocket a guinea for attendance at each meeting. The Hooley revelations some years ago checked this practice; but the fact that it should have existed shows the confidence that titles were believed to inspire among a large class of investors.

The glamour of rank appears to be if anything more dazzling as one descends in the social scale; and a scion of a noble family, even when he has no landed interest at his back, is usually a strong Parliamentary candidate in a working-class constituency. The extension of the franchise has thus rather increased than diminished the influence of the nobility. The House of Commons, no doubt, makes a show of insisting that the peers shall take no part in general elections; but they are, nevertheless, active in politics and even in great electioneering organisations, particularly in those that stand, like the Primrose League, a little outside of the regular party machinery. When a general election is not in progress the leaders of the House of Lords speak constantly in public; and at the present day speeches from the platform are reported in the daily press quite as fully, and read at least as widely, as those delivered in the House of Commons. A foreigner is impressed by the popular confidence in those peers who have attained a position in the forefront of politics. There seems to be a feeling that they are raised above the scrimmage of public life; that in rank, wealth, and reputation they possess already the goal of ambition, and are beyond the reach of the temptations that beset the ordinary man.

[Sidenote: Reform of the House of Lords.]

[Sidenote: Objects of Reform.]

The adoption by the Lords, in the autumn of 1906, of amendments to the Education Bill, so contrary to its spirit that they were rejected in the Commons by an overwhelming majority without any attempt at compromise, has brought the question of a reform of the upper House again prominently before the country. No one would now think of creating the House of Lords as it stands; but, as Mr. (now Lord) Courtney remarks, "The public judgment may long tolerate a machine which works without unnecessary friction, although it would not construct it in the same fashion if it had to be for the first time devised."[414:1] This is particularly true if it is difficult to propose something that would work better; and therefore in discussing the reform of the House of Lords it is important to have clearly in mind the objects to be attained. Now, there are four possible objects of a reform: to make the House less powerful; to make it more powerful; to change the nature of its power; or to bring it into greater harmony with the popular elements in the state; and it may be interesting to examine these objects in turn.

[Sidenote: To Reduce the Power of the House.]

The National Liberal Federation has repeatedly passed resolutions in favour of restricting what is called the veto of the House of Lords. This is most natural, for besides the objection in principle to hereditary legislators, there is the galling fact that the House is always hostile to the Liberal party. No one would suggest that so long as a second chamber is suffered to exist it should be wholly deprived of the right to reject or amend bills sent to it from the Commons. It is proposed, however, that the veto shall not be repeated after a certain interval, and the vital question is what that interval shall be. A provision that the Lords should not reject a bill passed by the Commons in two successive Parliaments, would probably be a mere legal ratification of their present constitutional position; for although, after a fresh general election has proved that the cabinet retains the confidence of the nation, the Lords may refuse a second time to enact one of its measures, they have never done so, and are not very likely to venture so far. A provision, on the other hand, that the Lords should not reject or amend a bill passed by the Commons in two successive sessions of the same Parliament would mean that except in the last session of an expiring Parliament, they could reject or amend seriously no government bill, whether convinced that the nation approved of it or not.[415:1] This would be almost equivalent to an entire abolition of the second chamber so far as government measures are concerned, because the shred of authority left would amount to little more than that of requiring the ministers to reconsider their position, which they could hardly do without stultifying themselves. The President of the French Republic has a similar right in relation to the chambers, but it is never exercised. A change of this kind could certainly be made, but whether it would be wise or not is another question.

Moreover, if a rule that the Lords should not reject or amend a government bill passed by the Commons in two successive sessions did not virtually destroy the power of the House of Lords altogether, it would not accomplish the object of the Liberals. It would not put them upon a footing of equality with the Conservatives, for it would mean that it would take them two sessions to pass any legislation of a far-reaching character, while the Conservatives could do it in one.

We are not concerned now with the question of reducing the power of the hereditary members of the House, by introducing other members in their stead; but of reducing the power of the House as a whole. Those persons who are seriously interested in reforming the composition of the body are usually more anxious to increase than to diminish its authority, and it would be somewhat strange to make the House of Lords more representative or more popular, while at the same time taking away the last remnants of its power in political questions.

[Sidenote: To Increase its Power.]

In considering suggestions to reform the House of Lords for the sake of increasing its efficiency we are met by the question whether with a parliamentary system, that is with government by party, as highly developed as it is in England, a more powerful upper House is possible. Fifty years ago second chambers were defended on the ground that they acted as a drag on radical legislation. But, as we have seen, the House of Lords does not really perform that function. It does not try to check legislation by one of the parties, and only under peculiar circumstances can it seriously restrain the other. Nor could any upper House render that service effectively in England to-day. The fact is that although historically the position of the House of Lords may have been the consequence of its hereditary, non-representative character, it is now doomed to its present condition by the inexorable logic of a political system. Its limitations in dealing with government bills are imposed by the principle of a ministry responsible to the popular chamber, and working through highly developed parties; its inability to exert a substantial influence upon other public legislation is the result, not of its own inherent weakness, but of the condition of the House of Commons; while in private bill legislation, which lies outside the domain of politics, it shares in full measure the authority of a coordinate branch of Parliament.

[Sidenote: To Change the Nature of its Power.]

The same reasoning would apply to any proposal to alter in character the powers exercised by the Lords. The channels of possible activity of any second chamber are fixed in England by the system itself, and they are not far from the ones in which the House of Lords now moves. The House could, no doubt, be shorn of the remnant of political authority that it still wields, and it could be deprived of its right to take part in private bill legislation; but it would seem that, except by merely reducing their extent, the nature of its powers cannot be very materially changed.

[Sidenote: To Bring it into Harmony with the Nation.]

[Sidenote: Creation of Peers.]

During the generation following the Reform Act of 1832, men spoke of the possibility of making new peers as a sufficient safeguard against obstinacy on the part of the upper House. It was felt that a ministry with the nation at its back could, if necessary, force the Lords to yield by advising the Crown to create peers enough to turn the scale. Lord Grey's government proposed to do this as a last resort to pass the Reform Bill of 1832, and obtained the consent of William IV.; but the threat was enough, and the Lords gave way. Such a drastic means of coercion is probably useless to-day; and would be only a temporary remedy. It is really not with the Commons that the House of Lords now comes into serious conflict, but with the cabinet which represents, or claims to represent, the nation, or to be more accurate the major part of the nation; and no creation of peers would be made to force a bill through the House of Lords unless the party in power had a mandate from the people to pass it. This is the real meaning of the saying that the House of Lords can force a referendum, or appeal to the nation, on a measure to which they object. A creation of peers to swamp the upper House would, therefore, not be tried until a general election had proved the persistent will of the electorate upon the measure in question, and then the Lords would in any case submit. Differences of opinion may, of course, arise on the question whether there is sufficient evidence of the popular will or not. In 1893, for example, the Liberals contended that the preceding general election had been carried on the issue of Home Rule, while the Conservatives insisted that it had really turned on other matters; and the same thing happened in the case of the Education Bill of 1906. Such a discussion may be conducted with heat, but especially with the enormous number of peers now required to turn a majority in their House, there is little danger of precipitate action. It is one of many cases where the conventions of the Constitution may appear to be strained, but where one may be sure they will not be broken.[417:1]

Moreover, if the creation of peers were within the region of practical politics to-day, it would be only a temporary remedy for existing grievances. Contrary to the prevalent opinion, Lord John Russell thought that in 1832 the authority of the House of Lords suffered, on the whole, more from the abstention of its members under threat, than it would have from an actual creation of peers that might have brought it into harmony with the people. He remarks that the Tory majority of eighty, hostile to Lord Grey's government, was held back by Wellington, but employed by Lyndhurst to kill unpretending but useful measures.[418:1] Subsequent events have shown the impossibility of maintaining harmony between the Houses by a single creation of peers, for had a batch of Lord Grey's supporters been given seats in the Lords in 1832, the House would have been heavily Conservative again within a generation.

The difficulty to-day is not so much that the peers are permanently out of accord with the nation, as that they are bound to one of the two parties into which the country is divided. A mere reduction in the size of the Tory majority would do little or no good; nor would the difficulty be solved if the majority were transferred to the other party, or even if it shifted at different periods. In a country governed by party as strictly as England is to-day, the majority in the upper House must at any one time belong to one side or the other. If the majority shifted, there would not be permanent irritation in the same quarter; but first one side, and then the other, would complain that the Lords thwarted the popular will. While, therefore, the occasional creation of a large number of peers, either hereditary or for life, might, at a sacrifice of the self-respect of the House of Lords, produce for the moment a greater similarity of views between the two branches of Parliament, a constant political harmony could be attained only by such additions to the upper House by each new set of ministers as would make it a mere tool in their hands. In short, an upper House in a true parliamentary system cannot be brought into constant accord with the dominant party of the day without destroying its independence altogether; and to make the House of Lords a mere tool in the hands of every cabinet would be well-nigh impossible and politically absurd.

[Sidenote: Reform in the Composition of the House.]

What is true of the creation of peers is true also of any other method of changing the membership of the House. Suggestions for reforming its composition have been based mainly upon the desire to reduce the hereditary element, and supply its place by representative men selected in other ways. The House contains, of course, many drones, who have inherited the right, without the desire, for public work. Either they do not attend at all, or they come only to swell a foregone majority upon some measure that has attracted popular interest. They give no time or thought to the work of the House, and their votes, on the rare occasions when they are cast, are peculiarly exasperating to their opponents. As the regular attendants at the sittings are few, it has been suggested that the English, like the Scotch and Irish, nobility should choose representatives of their own order, and that the rest should have no right to vote. Just as the Scotch and Irish representative peers are solidly Unionist, so a change of this kind would merely result in increasing the Conservative majority of the House, unless some principle of minority representation were adopted, in which case the majority, though numerically smaller, would be equally constant and more subject to party dictation.

On the other hand, it has been proposed to make the House more broadly representative of the nation by a more or less extended creation of life peers, nominated, in part, perhaps, by sundry public bodies in the United Kingdom. It may be doubted, however, whether life peers are needed to increase the eminence or, in one sense, the representative character of the House. The peerage has been opened freely to men distinguished in various fields; and while many men without wealth have doubtless been precluded from an honour that would burden their descendants, many others have come in. The number of hereditary members of the House has increased nearly, although not quite, in proportion to population; and only about one fourth of the present members sit by virtue of titles dating before 1800. A large share of the creations have been made for political service; but others have been conferred in consequence of wealth amassed in commercial and industrial pursuits; the most distinguished lawyers and soldiers have always been rewarded by a peerage; and so in more recent times have a few men of eminence in science and literature. A body that contains, or has recently contained, such men as Tennyson, Acton, Kelvin, Lister, Rayleigh, and many more, can bear comparison in personal distinction with any legislative chamber the world has ever known. Therefore one may fairly doubt whether the defect to be remedied by a creation of life peers is either a lack of brains in the House, or a failure of its members to represent the deeper currents of national life.

[Sidenote: Reform Unlikely to Add Much Strength.]

But the personal distinction of members, in fields outside of public affairs, has very little connection with the political power of a body; and the House of Lords itself furnishes one of the most striking proofs of that fact. The men whose names have been mentioned have taken no part in the work of the House, and such people rarely do. Moreover, if they take part they rarely do it well. Occasionally such a man may have a chance to say something on the subject of his own profession that carries weight. The speech of Lord Roberts in July, 1905, for example, about the inefficiency of the British Army, was considered a very impressive utterance, but, except for the rule of office that sealed his mouth in any other place, he might have delivered it with just as much effect elsewhere. Men who would be created life peers on account of their distinction in other lines would either take no interest in politics, or would take it so late in life that they would rarely carry weight with the public. Such influence and repute as the House of Lords now possesses is derived not from the personal fame of the members but from the social lustre of the peerage, and no creation of life peers would be likely to add anything to that. The authority of a public body depends not upon the eminence but upon the political following of its members; and it is self-evident that no leading English statesman in the full tide of his vigour and popularity would willingly exchange a seat in the House of Commons for an appointment for life in any second chamber, so that a House of Lords constructed on these principles would become in large part an asylum for decrepit politicians.

Another suggestion of a similar kind is that the House should be remodelled upon the lines of the Privy Council, but the Privy Council to-day as a working body is nothing but the ministry, the other members attending only on ceremonial occasions. It is a mere instrument of government in the hands of the cabinet; nor, so far as English politics are concerned, can it very well be anything else. The proposal that colonial members should sit in the House of Lords is interesting from other points of view, but clearly it could not be applied in the case of domestic legislation. That the will of the House of Commons on English questions should be thwarted by representatives from other parts of the empire would be far more unfortunate than to have it thwarted by hereditary English nobles.

[Sidenote: Other Probable Results.]

But if a change in the composition of the House of Lords would be very unlikely to raise its political position as a whole, it might well reduce the personal influence of individual peers. If the House came to be regarded as mainly a collection of persons holding seats for life, the social position of its members might be very different from that of an hereditary nobility. A radical reform in the composition of the House might also very well produce a change of another kind. Perhaps the most important function of the House of Lords at the present day, and probably the chief privilege of its members, comes from the fact that it is largely a reservoir of ministers of state. By the present traditions ministers must be all taken from one House or the other; and a large proportion of them are always taken from the peers. This gives a nobleman, who is sincerely interested in public life, even if of somewhat slender ability, a fair prospect of obtaining a position of honour and usefulness. Now, if a number of life peers were to be created, it would clearly be possible to confer a title upon a man for the purpose of making him a minister. If this were done commonly, it might affect not only the position of the existing peers, but also that of the House of Commons. For a man not born to a coronet would be able to achieve a high office of state without an apprenticeship in the popular chamber. Thus a channel might be opened for a direct connection between the cabinet and the political forces of the nation without the mediation of the House of Commons. The change might be a first step in lessening the authority of Parliament, because cabinets, as will be explained in the following chapter, being really made or destroyed by the popular voice uttered in general elections, much of the power of the House of Commons is based upon the fact that it is the sole recruiting ground for all ministers not hereditary peers.

Unsatisfactory, therefore, as the present position of the House of Lords is to many people in England, the difficulties that surround the question of reform are very great; and a half-unconscious perception of these explains in large part the fact that although proposals to reform the House have been made of late years by leading men of every shade of political opinion, none of them has borne fruit, or even taken the shape of a definite plan commanding any considerable amount of support. To reform the House of Lords, or to create some other satisfactory second chamber may not be an impossible task, but it is one that will require constructive statesmanship in a high degree; and to obtain the best chance of success it ought to be undertaken at the most unlikely time, a time when the question provokes no passionate interest.

FOOTNOTES:

[406:1] "The Governance of England," 218.

[406:2] In 1830 the House of Lords contained 326 hereditary members. From that time until the fall of Mr. Gladstone's cabinet, in 1885, the Liberals made 198 additions to these members; and during the same period the Conservatives made 70. Since 1885 the Conservatives have been in power by far the greater part of the time, and their creations of peers have been correspondingly more numerous.

[409:1] See the chapter on "The Strength of Party Ties," infra.

[412:1] When the Liberals are in power this is not much use for bills which the Lords are likely to amend seriously, because the amendments would have to be reversed in the Commons at a cost of much time.

[412:2] Rep. of Com. on Priv. Bill Legislation, Com. Papers, 1888, XVI., 1.

[414:1] "The Working Constitution," 120.

[415:1] Probably the advocates of this policy would not want to apply it in the case of private bill legislation.

[417:1] The power to create peers enough to swamp the House has a potential value. It could be used once for all to abolish or transform the body, and this fact has, no doubt, its effect on the general attitude of the members, but that does not affect the argument that as a means of maintaining harmony between the Houses the power is useless.

[418:1] "Recollections and Suggestions," 110-11.

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XXIII. THE CABINET AND THE COUNTRY

[Sidenote: Transfer of Power from Parliament to the People.]

[Sidenote: Its Causes; (1) the Growth of Power of the Cabinet.]

If the predominance of the House of Commons has been lessened by a delegation of authority to the cabinet, it has been weakened also by the transfer of power directly to the electorate. The two tendencies are not, indeed, unconnected. The transfer of power to the electorate is due in part to the growing influence of the ministers, to the recognition that policy is mainly directed, not by Parliament, but by them. The cabinet now rules the nation by and with the advice and consent of Parliament; and for that very reason the nation wishes to decide what cabinet it shall be that rules. No doubt the ministry depends for its existence upon the good pleasure of the House of Commons; but it really gets its commission from the country as the result of a general election. Even if its life should be cut short by the Commons, the new cabinet would not now rest for support upon that Parliament; but would at once dissolve and seek a fresh majority from the electors. This was by no means true forty years ago. The Parliament elected in 1852, which sat a little more than four years, supported during the first half of that time a coalition ministry of Liberals and Peelites, and during the second half a ministry of Liberals alone. The following Parliament affords an even better illustration. It met in 1857 with a large majority for the Liberal cabinet of Lord Palmerston; but in less than a year he was defeated and resigned, to be succeeded by the Conservatives under Lord Derby, who carried on the government for another year before dissolving. The case of the next Conservative administration is more striking still. Coming into office in 1866, in face of a hostile majority, strongly Liberal, but hopelessly divided upon questions of reform, it remained in power more than two years, and brought to pass a drastic extension of the franchise before it dissolved Parliament. Nothing of the kind has occurred since that time. Every subsequent change of ministry has either been the immediate consequence of a general election, or if not, the new cabinet has kept the old Parliament together only so long as was absolutely necessary to dispose of current business, and has then appealed to the people. Practically, therefore, a change of ministry to-day is either the result of, or is at once ratified by, a general election.

[Sidenote: (2) The Increase of the Electorate.]

The decline in the power of the House is partly due also to the extension of the franchise, and the consequent growth in size of the electorate, which has become so large that the voters cannot be reached by private or personal contact, but only by publicity. A cynic might well say that if oligarchy fosters intrigue, democracy is based upon advertisement, for in order to control the electorate it is no longer enough, as it was a hundred years ago, to be backed by a few influential patrons or to enlist the support of the members of Parliament. The immense mass of the voters must be addressed, and hence public questions must be discussed not only in Parliament, but in the ears of the people at large.

[Sidenote: (3) The Control by Public Opinion.]

A third reason why power tends to pass away from the House is the greater control exerted in political affairs by public opinion, in consequence of the rapid means of disseminating knowledge and of forming and expressing a judgment. Whatever may be the importance of the editorial columns of the daily press in creating, or giving voice to, the general sentiment--and there is reason to suppose that editorials are of less consequence in both respects than they were formerly--it is certainly clear that the multiplication of cheap newspapers has made it possible for vastly larger numbers of men to become rapidly acquainted with current events; while the post and telegraph, and the habit of organisation, have made it much more easy for them to express their views. A debate, a vote, or a scene, that occurs in Parliament late at night is brought home to the whole country at breakfast the next morning, and prominent constituents, clubs, committees and the like, can praise or censure, encourage or admonish, their member for his vote before the next sitting of the House. Rousseau's charge that the English were free only at the moment of electing a Parliament, and then were in bondage during the whole of its term, was by no means really true when he wrote it, and is far less true to-day. It is for this reason that there has ceased to be any clamour for annual Parliaments, almost the only one of the famous six points in the People's Charter that has not been substantially achieved.[425:1] Parliaments have not grown shorter. On the contrary, in the twenty years from 1832 to 1852, when the cry of the Chartists was heard, the average duration of Parliaments was four years, and since the extension of the suffrage in 1868 they have averaged four years and three-quarters.

[Sidenote: Its Manifestations.]

The passing of political power from the House of Commons to the people is shown by many unmistakable signs, and by none more clearly than by the frequent reference in Parliament itself to the opinions of the "man in the street." He is said to fear this, or be shocked by that, or expect the other; and the House is supposed to pay some regard to his views, not because he is peculiarly gifted with knowledge, experience, or wisdom, in greater measure than the members themselves. Far from it. He is cited as a specimen of average humanity; the person to whom Carlyle referred when he spoke of modern Parliaments with twenty-seven millions, mostly fools, listening to them.[425:2] The members of the House are supposed to heed him because they are his representatives; for he is taken as a type of the voter of fair intelligence. In fact he is the personification of what is believed to be outside opinion.

[Sidenote: The Doctrine of Mandate.]

Another sign of the times is found in the doctrine, now sanctioned by the highest authority, that Parliament cannot legislate on a new question of vital importance without a mandate from the nation. The theory that the individual representative is a mere delegate of his constituents, so that he is bound to resign and submit to reelection if he changes his views, has long been a subject of discussion; but the idea that Parliament as a whole exercises a delegated authority in the sense that it is morally restrained from dealing with questions that have not been laid before the people at the preceding general election would formerly have been regarded as a dangerous political heresy. Yet during the recent agitation in regard to fiscal policy, Mr. Balfour, while repudiating the suggestion that the existing Parliament, having been elected on the single issue of the South African War, ought to be dissolved when peace was made,[426:1] refused to grant time for a debate on free food, on the ground that it would be constitutionally improper for Parliament to act on the question until it had been submitted to the people at a general election,[426:2] and that it would be unwise for the House to discuss a subject on which it could not act.[426:3]

Based upon a similar principle is the claim reiterated by the Opposition during the latter part of Mr. Balfour's administration, that, although supported by a majority in the House of Commons, he ought to resign, because a long series of by-elections had shown that he had lost the confidence of the country. His retention of office under those conditions was said to be contrary to the spirit of the Constitution;[426:4] and Mr. Balfour's resignation late in 1905, when Parliament was not in session, involved an acknowledgment, if not of the necessity, at least of the propriety, of withdrawing from office in such a case. Former cabinets have sometimes broken up on account of dissensions among their members, or the impossibility of maintaining an efficient government; but there has been no previous instance of a cabinet, supported by a majority in Parliament, which has resigned apparently in consequence of a change of popular sentiment.

[Sidenote: Waning Interest in Reports of Debates.]

But perhaps the most ominous sign that power is passing away from the House is the slowly waning interest in parliamentary debates. In the eighteenth century the House strove to prevent the publication of its discussions. Now the debates are printed under a contract with the government, which provides that no speech shall be reported at less than one third of its actual length;[427:1] and most of the members like to appear in the newspapers as prominently as they can. But, if the desire of the members to be reported is still increasing, the eagerness of the public to read what they say is less keen. Men who are thoroughly familiar with the reporters' gallery tell us that the demand for long reports of speeches in Parliament has declined, and that editors find it for their interest to cut them down, often substituting for the remarks of the members themselves descriptive sketches of what took place.[427:2] One cause of this is, no doubt, the length of the debates, and the number of minor speakers taking part, which tends naturally to dull the popular craving to read them. Then there is the fact that Parliament is no longer the only place where the party leaders make notable speeches. In short, the predominance of the House of Commons as the great forum for the discussion of public questions has been undermined by the rise and growth of the platform.

[Sidenote: History of the Platform.]

After a long slumber the habit of speaking at public meetings revived about the middle of the eighteenth century;[428:1] and a little later it was taken up, in connection with the early political associations, as a systematic means of agitation in the hope of bringing pressure to bear upon Parliament. At an early time leaders of the party in opposition were present; but after the outbreak of the French Revolution public meetings came to be used mainly by the working classes, and were regarded as seditious. Men who took part in them were prosecuted, and acts were passed to suppress them. These were so effective that by the opening of the next century political meetings had ceased to be held; except at elections, when some of the candidates for Parliament made speeches to their constituents. The repressive statutes were, however, temporary, and, although they were reenacted more than once, the meetings revived during the intervals of freedom. The last of these special statutes, one of the famous Six Acts of 1819, expired in 1825, and from that time the platform entered upon a fresh career, marked by three new features: the participation of all classes; the organised effort to bring about a definite political change by a legitimate creation of public opinion; and the growing use of public speaking by parliamentary leaders as a regular engine of party warfare. Moreover, the influence of the platform was much enlarged by the practice, which began shortly before that time, of reporting the meetings and speeches at considerable length in the provincial press.

[Sidenote: The Platform and Popular Movements for Reform.]

The first movement at this period in which the platform played a leading part was conducted by the Catholic Association in Ireland, and ended in the removal of Catholic disabilities by the Act of 1829. But far more important examples of the use of public meetings are to be found in England. Throughout the agitation that accompanied the passage of the Reform Act of 1832, public meetings were innumerable, and the platform was raised to a dignity and influence much greater than ever before. In fact its position as a recognised power in English public life began at that time. Its rapid advance in good repute was much helped by the fact that during the struggle for reform it was used mainly to strengthen the hands of the ministry; but this was not yet its characteristic function. For the next score of years it was chiefly employed in attempts to force upon the attention of Parliament, by popular agitation, measures which did not otherwise receive serious consideration. Two efforts of the kind are especially noteworthy. One of them, that of the Anti-Corn-Law League, by the completeness of its organisation, by the cohesion and eloquence of its leaders, by confining its attention to one point, and by good fortune, succeeded in accomplishing its object. The other, that of the Chartists, lacking these advantages, failed; and although most of the demands of the Chartists were afterward obtained, that was the result not of their endeavours, but of other causes.

[Sidenote: The Platform and the Ministers.]

Meanwhile the platform was used more and more freely by the parliamentary leaders, but this came gradually. Pitt spoke only in the House of Commons; and in fact until a few years before the Reform Bill almost no minister, except Canning, made political speeches outside, and his were addressed mainly to his own constituents. In 1823, however, he delivered a speech at Plymouth, in which for the first time a statement about foreign policy was made by a minister in public, and five years later the change in the government's policy about Catholic disabilities was announced at a banquet. With the reform movement the ministers began to take the public a little more into their confidence. At the general election of 1831, Lord John Russell made the first public speech intended as an election cry,[429:1] and aroused an echo at meetings throughout the land. In the same year Lord Grey talked about the bill at the Lord Mayor's dinner, a festivity that became in after years a regular occasion for announcements of government policy. From that time the use of the platform grew rapidly in favour with the cabinet. In 1834 Lord Brougham made the unfortunate series of harangues in Scotland that wrecked his political career. A little later Lord Melbourne explained his own dismissal in a public speech; and Peel, on taking office, declared his policy in an address to his constituents. So important a matter, indeed, did the platform become in public life, that Lord Melbourne, referring to the performances of Brougham and O'Connell, spoke of the vacation as a trying time.[430:1] Thereafter the platform was constantly used both by ministers and leaders of the Opposition to bring public opinion to their side.

As usual in English politics, practice outran theory; for so late as 1886 Mr. Gladstone, in answer to a remonstrance from the Queen, felt it necessary to excuse himself for making speeches outside of his constituency, on the ground that in doing so he was merely following the example of the Conservatives.[430:2] Yet in 1879 he had set the nation ablaze by his Midlothian campaign; and although his orations there were delivered as a candidate for the seat, they were, and must have been intended to be, published by the newspapers all over the country.[430:3] It was, in fact, at this very time that Lord Hartington spoke of the far greater interest taken in public speeches than in debates in Parliament.[430:4] Not that the platform became at once of especial value to the party leaders. On the contrary, it was at first used much more frequently by the Anti-Corn-Law League, the Chartists and others. But since the introduction of something very near manhood suffrage, which began in 1868, great popular movements, unconnected with party politics, have become well-nigh impossible. In a real democracy there is little use in trying to overawe the government by a display of physical force, and hence an agitation has for its natural object the winning of votes. But the House of Commons has now been brought so fully into accord with the masses of the people that any strong popular sentiment is certain to find immediate expression there. Once in the House it is on the edge of a whirlpool, for even if it originates quite outside of the existing parties, and gives rise, at first, to a new political group, it can hardly fail, as it gathers headway, to be drawn into the current of one of the two great parties, and find a place in their programme. Now in any question connected with party politics the highest interest attaches to the speeches of the party leaders, both because they are the standard bearers in the fight, and because they are the men who have power, or at the next turn of the wheel will have power, to give effect to their opinions.

[Sidenote: Public Speaking now Universal.]

The platform has thus had a perfectly natural evolution. So long as elections to the House of Commons were controlled by a small number of persons, public speaking could be effective only occasionally, when popular feeling could be deeply stirred over some grievance; and it was employed chiefly by outsiders in an effort to force the hands of Parliament. This was in part true even after 1832. But when the suffrage was more widely extended in 1868, so that elections depended upon the good-will of the masses, it became necessary for any one with political aspirations to reach the public at large, and the most obvious means of so doing was from the platform. Speeches by candidates at elections became universal, and in order not to let the flame of loyalty burn low, it has been increasingly common to fan it at other times, by the talking of members to their constituents, and still more by addresses to the whole community on the part of leaders of national reputation. Public speaking has, therefore, become constant, without regard to the existence of any issue of unusual prominence. James Russell Lowell long ago made a remark to the effect that democracy is government by declamation, and certainly household suffrage has loosened the tongues of public men. An observer at the present day is struck by the fluency of Englishmen upon their feet, and by the free use of humour as a means of emphasis, instead of the sonorous phrases formerly styled oratory.

[Sidenote: The Platform has Increased the Influence of Party Leaders.]

It has now become a settled custom for the cabinet ministers and the leaders of the parliamentary Opposition to make a business of speaking during the late autumn and the spring recess; and the habit tends to magnify their power, for they are the only persons who have fully the ear of the public. Except for a few important utterances, the debates in Parliament are not very widely read; editorials in the press are read solely by members of one political faith; the remarks of private members to their constituents are published only in the local papers; but public speeches by the chief ministers, and to a less extent those by the principal leaders of the Opposition, are printed at great length by the newspapers of both parties, and are read everywhere.[432:1]

Moreover, the platform gives a greater freedom than the floor of the House. The ministers do not want to bring before Parliament a policy they are not immediately prepared to push through, nor would it be easy to find time amid the business of a session to do so. It is not altogether an accident, it is rather a sign of the times, that Mr. Chamberlain broached his plan of preferential tariffs, not in Parliament, but at a public meeting in Birmingham. It was, indeed, a strange thing to see an ardent discussion on a most important question conducted in public meetings and in the press, while the ministers were striving to prevent debate upon it in the House of Commons. It was a mark of the limitation which the course of events has placed upon Parliament. The platform has brought the ministers face to face with the people, and this has increased the political importance of both. Not only is the electorate the ultimate arbiter in political matters, but the platform has in some degree supplanted the House as the forum where public questions are discussed.

[Sidenote: Its Benefits.]

Frequent public addresses by the men in whom the whole responsibility for the conduct of national affairs is concentrated, and by those who will be responsible when the next change of ministry occurs, cannot fail to educate the voters, and quicken their interest in all the political issues of the day. Moreover, the process is not confined to the intermittent periods of election, but goes on all the time; and although the practice, brought into vogue by the Anti-Corn-Law League, of joint debates at public meetings has not taken permanent root in England, the same result is reached in another way, because the party leaders answer one another's speeches from different platforms, and if the listeners are not identical, the public reads both arguments. Sir Henry Maine spoke of the tendency to look upon politics as a "deeply interesting game, a never-ending cricket-match between Blue and Yellow";[433:1] and the fact that this aspect of the matter is more marked in England than anywhere else makes English politics the most interesting, and the most easy to follow, in the world. The rulers of the country, and those who both have been and will be her rulers, fight at close range across a table for six months of the year, and during the rest of the time they carry on the ceaseless war by public speaking. As in the Athenian democracy, the citizens witness a constant struggle among rival statesmen for supremacy, but in England they are merely spectators until a general election summons them to give their verdict. One can hardly conceive of a system better calculated to stimulate interest in politics without instability in the government.

[Sidenote: Its Perils.]

But if the platform educates the voter, it has its dangers also. Bismarck is reported to have said that the qualities of the orator are not only unlike, but incompatible with, those of the statesman; and certainly the continual need of taking the public into one's confidence is hard to reconcile with the execution of far-reaching plans for the national welfare, for until the results are in sight, these cannot be made intelligible to the mass of the people. The English statesman is called upon at all times to show his hand, at the risk of seeming disingenuous or secretive if he does not do so. His whole policy is analysed and criticised; the seeds he plants are dug up prematurely to see if they are sprouting. Hence he is under a strong temptation to take a stand that will win immediately popular approval. In short, he lives in a glass house, which is likely to mean a very respectable but rather superficial life.

Moreover, in the custom of speaking from the platform there lurks a danger to the system of cabinet government; for that system is based upon the principle that the initiative in public policy rests with the ministers, and the main issue decided at a general election is whether the cabinet shall remain in power. Now ministers have not always been in the habit of arranging what shall be said upon the platform with the same care as what measures shall be brought before Parliament. But in view of the present importance of the platform it is obvious that if the cabinet system is to continue, the ministers must present a unanimous front to the public as well as to Parliament; and this consideration leads to a study of the function of party in the English political system.

FOOTNOTES:

[425:1] The six points were: universal suffrage, annual Parliaments, equal electoral districts, abolition of property qualification, vote by ballot, and payment of members. Of all these demands annual Parliaments and payment of members alone have not been substantially attained.

[425:2] "Latter Day Pamphlets: The Stump Orator," No. 5.

[426:1] E.g. Hans. 4 Ser. CXXXII., 1013-15; CXLI., 162.

[426:2] Ibid., CXXXI., 679; CXLVI., 987-89.

[426:3] Ibid., CXLI., 163; CXLV., 622, 627; CXLVI., 496.

[426:4] Ibid., CXXXII., 1005, 1019; CXLI., 122-23, 180-82.

[427:1] Cabinet ministers and the leaders of the Opposition are reported in full in the Parliamentary Debates, and other members usually at about two-thirds length. Macdonagh's "Book of Parliament" contains an interesting chapter on "The Reporters' Gallery."

[427:2] Macdonagh, 315. And see an article by Alfred Kinnear, and an answer by A. P. Nicholson in the Contemporary Review for March and April, 1905, LXXXVII., 369, 577.

[428:1] The best work on this subject is Jephson's "The Platform: Its Rise and Progress."

[429:1] Jephson, II., 65.

[430:1] Walpole, "Life of Lord John Russell," I., 248.

[430:2] Morley, "Life of Gladstone," III., 344.

[430:3] Mr. Lecky expressed a common opinion in the introduction to the second edition of his "Democracy and Liberty" (p. liii.), where he spoke of Mr. Gladstone as "the first English minister who was accustomed, on a large scale, to bring his policy in great meetings directly before the people," adding that he "completely discarded the old tradition that a leading minister or ex-minister should confine himself almost exclusively to Parliamentary utterances and should only on rare occasions address the public outside." Mr. Gladstone's power was, indeed, due quite as much to the effect of his public speeches as to his influence over the House of Commons.

[430:4] Quoted by Jephson, II., 391.

[432:1] Mr. Kinnear in the Contemporary Review for March, 1905, says that the demand by newspapers for public speeches by leading statesmen has declined. They would probably have more readers, though less hearers, if they were neither so long nor so frequent.

[433:1] "Popular Government," 149.

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XXIV. PARTY AND THE PARLIAMENTARY SYSTEM

[Sidenote: Lack of a Psychology of Political Parties.]

The last generation has made great strides in the study of psychology. The workings of the individual mind, and its reaction to every stimulus or impression, especially under morbid conditions, have been examined with far more care than ever before. Social psychology has also come into view, and attempts have been made to explain the psychology of national traits, and of abnormal or unhealthy popular movements, notably mobs. But the normal forces that govern the ordinary conduct of men in their public relations have scarcely received any scientific treatment at all. In short, we are almost wholly lacking in a psychology of political parties, the few scattered remarks in Maine's "Popular Government" being, perhaps, still the nearest approach to such a thing that we possess.[435:1]

[Sidenote: Although Parties are Universal.]

The absence of treatises on the subject is all the more remarkable because the phenomena to be studied are almost universal in modern governments that contain a popular element. Experience has, indeed, shown that democracy in a great country, where the number of voters is necessarily large, involves the permanent existence of political parties; and it would not be hard to demonstrate that this must in the nature of things be the case. That parties exist, and are likely to continue to do so, has provoked general attention. By all statesmen they are recognised as a factor to be reckoned with in public life; and, indeed, efforts have been made in various places to deal with them by law. In the United States, for example, the local caucuses, or conventions of the parties, and their methods of nominating candidates, have of late years been regulated by statute; while in Switzerland and Belgium, elaborate schemes of proportional representation have been put into operation to insure a fair share of seats to the groups in the minority.

[Sidenote: Modern View of Parties.]

But if political parties have become well-nigh universal at the present time, they are comparatively new in their modern form. No one in the eighteenth century foresaw party government as it exists to-day, enfolding the whole surface of public life in its constant ebb and flow. An occasional man like Burke could speak of party without condemnation;[436:1] but with most writers on political philosophy parties were commonly called factions, and were assumed to be subversive of good order and the public welfare. Men looked at the history with which they were familiar; the struggles for supremacy at Athens and at Rome; the Guelphs and Ghibelines exiling one another in the Italian republics; the riots in the Netherlands; the civil war and the political strife of the seventeenth century in England. It was not unnatural that with such examples before their eyes they should have regarded parties as fatal to the prosperity of the state. To them the idea of a party opposed to the government was associated with a band of selfish intriguers, or a movement that endangered the public peace and the security of political institutions.

Foreign observers, indeed, point out that for nearly three hundred years political parties have existed in England, as they have not in continental countries; and that the procedure of the House of Commons has consistently protected the Opposition in its attacks upon the government.[437:1] This is true, and there is no doubt that even in the seventeenth century party struggles were carried on both in Parliament and by pamphlets and public speeches, with a freedom unknown in most other nations; but still they were a very different thing from what they are now. They were never far removed from violence. When the Opposition of those days did not actually lead to bloodshed, it was perilously near to plots and insurrection; and the fallen minister, who was driven from power by popular feeling or the hostility of Parliament, passed under the shadow at least of the scaffold. Danby was impeached, and Shaftesbury, his rival, died a refugee in Holland. With the accession of the House of Hanover, and the vanishing of the old issues, political violence subsided. The parties degenerated into personal factions among the ruling class; and true parties were evolved slowly by the new problems of a later generation.

[Sidenote: "His Majesty's Opposition."]

The expression, "His Majesty's Opposition," said to have been coined by John Cam Hobhouse before the Reform Bill,[437:2] would not have been understood at an earlier period; and it embodies the greatest contribution of the nineteenth century to the art of government--that of a party out of power which is recognised as perfectly loyal to the institutions of the state, and ready at any moment to come into office without a shock to the political traditions of the nation. In countries where popular control of public affairs has endured long enough to be firmly established, an Opposition is not regarded as in its nature unpatriotic. On the contrary, the party in power has no desire to see the Opposition disappear. It wants to remain in power itself, and for that reason it wants to keep a majority of the people on its side; but it knows well that if the Opposition were to become so enfeebled as to be no longer formidable, rifts would soon appear in its own ranks. In the newer democracies, such as France and Italy, there are large bodies of men whose aims are revolutionary, whose object is to change the existing form of government, although not necessarily by violent means. These men are termed "irreconcilables," and so long as they maintain that attitude, quiet political life with a peaceful alternation of parties in power is an impossibility.

[Sidenote: Conditions of Good Party Government.]

The recognition of the Opposition as a legitimate body, entitled to attain to power by persuasion, is a primary condition of the success of the party system, and therefore of popular government on a large scale. Other conditions of success follow from this.

[Sidenote: Opposition must not be Revolutionary.]

If the Opposition is not to be regarded as revolutionary, its objects must not be of that character, either in the eyes of its own adherents, or in those of other people. As Professor Dicey has put it, parties must be divided upon real differences, which are important, but not fundamental. There is, of course, no self-evident line to mark off those things that are revolutionary or fundamental; and herein lies an incidental advantage of a written constitution restricting the competence of the legislature, for it draws just such a line, and goes far to confine the immediate energies of the parties to questions that are admitted not to be revolutionary.[438:1] In the absence of a constitution of that kind, party activity must be limited to a conventional field, which is regarded by the public opinion of the day as fairly within the range of practical politics. Clearly the issues must not involve vital matters, such as life or confiscation. When, during the progress of the French Revolution, an orator argued in favour of the responsibility of the ministers, and added "By responsibility we mean death," he advocated a principle inconsistent with the peaceful alternation of parties in power.

[Sidenote: Lines of Cleavage must not be Social.]

For the same reason there is grave danger when the lines of cleavage of the parties coincide with those between the different social classes in the community, because one side is likely to believe that the other is shaking the foundations of society, and passions are kindled like those that blaze in civil war. This is true whenever the parties are separated by any of the deeper feelings that divide mankind sharply into groups; and especially when two or three such feelings follow the same channel. The chief difficulty with Irish Nationalism, as a factor in English politics, lies in the fact that to a great extent the line of cleavage is at once racial, religious, social, and economic.

[Sidenote: Issues must be Based on Public Matters.]

In order that the warfare of parties may be not only safe, but healthy, it must be based upon a real difference of opinion about the needs of the community as a whole. In so far as it is waged, not for public objects, but for the private gain, whether of individuals, or of classes, or of collective interests, rich or poor, to that extent politics will degenerate into a scramble of self-seekers.

[Sidenote: Relation of Parties to Political Institutions.]

Before inquiring how far these conditions have been fulfilled in England we must consider the form that party has assumed there, and the institutions to which it has given birth. England is, in fact, the only large country in which the political institutions and the party system are thoroughly in harmony.

[Sidenote: In America.]

The framers of the Constitution of the United States did not foresee the role that party was to play in popular government,[439:1] and they made no provision for it in their plan; yet they established a system in which parties were a necessity. It was from the first inevitable, and soon became clear, that the real selection of the President would not be left to the judgment of the electoral college--a result made the more certain, first, by providing that the members should assemble by States, and hence should not meet together as a whole for deliberation; and second, by excluding from the college all congressmen and holders of federal offices, that is, all the leading men in national public life.[440:1] If the electoral college was not really to select the President, it must become a mere machine for registering the results of a popular vote throughout the nation, and the candidates for the presidency must be designated beforehand in some way.

In a small district where the voters are few, and an interchange of opinions naturally takes place by informal conference, public officers may be elected by popular vote without the existence of any machinery for nomination; but in a large constituency, where the voters are not personally acquainted with each other, men who have the same objects in view must get together, agree upon a candidate, and recommend him to the public. Otherwise votes will be thrown away by scattering them, and it will be mere chance whether the result corresponds with the real wishes of the voters or not. In short, there must be some process for nominating candidates; that is, some party organisation; and the larger the electorate the more imperative the need of it. Now the electorate that practically chooses the President of the United States is by far the largest single constituency that has ever existed in the world. It is, in fact, noteworthy that democracy throughout Europe adheres to the custom of dividing the country for political purposes into comparatively small electorates; while in the United States it is the habit to make whole communities single constituencies for the choice of their chief magistrates--state governors or national president--a condition of things that involves elaborate party machinery for nomination, and hence the creation of huge party organisations on a popular basis.

The form of government in the United States has thus made parties inevitable; and yet they were furnished with no opportunity for the exercise of their functions by the regular organs of the state. There were no means provided whereby a party could formulate and carry through its policy, select its candidates for high office, or insure that they should be treated as the real leaders of the party and able to control its action.[441:1] The machinery of party, therefore, from the national convention to the legislative caucus, has perforce been created outside the framework of the government, and cannot be nicely adjusted thereto.

[Sidenote: In Continental Europe.]

The European countries, on the other hand, that have adopted the English parliamentary system, have usually copied those features, like the responsibility of the ministers, which were most readily perceived, without acquiring at the same time the substructure on which the system rests, the procedure which prevents friction, or the national traditions which supply the motive power. The result has been that a form of government well fitted to the great English parties has proved very imperfectly suited to the numerous political groups that exist in most of the continental legislatures.[441:2] In France the conditions have indeed changed much in the last few years, the procedure has been gradually better adapted to the parliamentary system, and the ministries have gained in stability; but as yet the difficulties are by no means overcome. In some of the smaller countries, such as Belgium and Switzerland, the organs of government and the system of parties are less inconsistent; in Belgium because she followed British precedents more faithfully; in Switzerland because she was enabled by her small size, coupled with a federal structure, to create a novel polity of her own, in which parties are given no constitutional sphere of action, and play an unusually subordinate part. In none of these countries, however, is the form of government so fully consonant with the party system as it is in Great Britain.

[Sidenote: English Parliamentary System Grew out of Parties.]

In England the party system is no more in accord with the strictly legal institutions, with King, Lords and Commons, than it is elsewhere; but it is in absolute harmony with those conventions, which, although quite unknown to the law, make up the actual working constitution of the state. It is in harmony with them because they were created by the warfare of parties, were evolved out of party life. Government by a responsible ministry was not the inevitable consequence of the long struggle between the House of Commons and the Crown. Some other means might very well have been devised for taking the executive power out of the personal control of the King. It was rather the result of the condition of the House itself; for it is inconceivable that this form of government should have appeared if Parliament had not been divided into Whigs and Tories. In fact the whole plan would be senseless if parties did not exist. The reason for the resignation of a ministry upon the rejection of a measure it has proposed is that the defeat indicates a general loss of confidence in the policy of the party in power, and the preference for another body of leaders with a different policy. If this were not so, the Swiss practice of remaining in office, but yielding on the point at issue, would be far more sensible. The parliamentary system is thus a rational expression of the division of the ruling chamber into two parties.

[Sidenote: It has Made Parties Stronger.]

Neither the parliamentary system nor the party system, neither the responsibility of ministers to the House of Commons nor the permanent division into two parties, grew up in a day. Throughout the eighteenth century the principle of cabinet responsibility was but dimly recognised; while parties at times disintegrated, and the wheels of government were kept going by means of corruption, which has served in all ages as a lubricant for ill-adjusted political machinery. But little by little, with halting steps, the rivalry of parties built up the responsibility of ministers, and this in turn helped to perpetuate the party divisions; for the parliamentary system, like every rational form of government, reacts upon and strengthens the conditions of its own existence. It is based upon party, and by the law of its nature tends to accentuate party. Ministers perceived that their security depended upon standing together, presenting a united front, and prevailing upon their friends to do the same. The leaders of the Opposition learned also that their chance of attaining to power was improved by pursuing a similar course. In this way two parties are arrayed against one another continually, while every member of Parliament finds himself powerfully drawn to enlist under one banner or the other, and follow it on all occasions. He cannot consider measures simply on their merits, but must take into account the ultimate effect of his vote. As soon as men recognise that the defeat of a government bill means a change of ministry, the pressure is great to sacrifice personal opinions on that bill to the greater principles for which the party stands; and the more fully the system develops, the clearer becomes the incompatibility between voting as the member of Parliament pleases on particular measures, and maintaining in power the party he approves. In short, the action of the House of Commons has tended to become more and more party action, with the ministers, as we have already seen, gradually drawing the initiative in legislation, and the control over procedure, more and more into their own hands.

[Sidenote: It is Government by Party.]

The English government is builded as a city that is in unity with itself, and party is an integral part of the fabric. Party works, therefore, inside, instead of outside, the regular political institutions. In fact, so far as Parliament is concerned, the machinery of party and of government are not merely in accord; they are one and the same thing. The party cabal has become the Treasury Bench. The ministers are the party chiefs, selected not artificially but by natural prominence, and the majority in the House of Commons, which legislates, appropriates money, supervises and controls the administration, and sustains or discards ministers, is the party itself acting under the guidance of those chiefs. The parliamentary system, as it has grown up spontaneously in England, is in its origin and nature government by party, sanctioned and refined by custom. In that respect it differs, not only from national political systems elsewhere, but also from British local government. This last is not an outgrowth of party, but, like most of the existing popular institutions in other countries, was designed, not evolved. In it, as we shall see hereafter, party has no organic connection with the ruling bodies, and has not the same controlling authority as in national affairs.

[Sidenote: It can Thrive only with Two Parties.]

If the existence of a responsible ministry normally involves government by party, it also requires as a condition of success that there shall be only two parties. The ills that have flowed from the subdivision of the French, the Italian and other parliaments, into a number of groups are now an oft-told tale. The consequences there are very different from those that occur where the executive is not responsible to the legislature. In this last case the presence of several groups may result in the election of a president, a council or an assembly, representing a minority of the voters, and if so the popular will may not be truly expressed. Yet the government will go on unshaken until the next periodic election. But with similar conditions under the parliamentary system the administration itself will be weak, its position unstable, its tenure of office dependent upon the pleasure of a group that may be ready to sacrifice everything else for a single object. Parnell was quite right in his reckoning that if he could keep the Home Rulers together until they held the balance of power in the House, one or other of the great parties must make terms with them, or parliamentary government would be unworkable.

[Sidenote: Opposition not Entirely Genuine.]

In the English system the initiative in most matters of importance has come into the hands of the cabinet ministers, as the representatives and leaders of the predominant party. It is their business to propose, and it is the business of the Opposition to oppose. But the attitude of the latter is not quite spontaneous. On rare occasions it congratulates the government upon some action, which it supports heartily. More commonly it seeks to criticise everything, to find all imaginable faults. Impotent to legislate, it tries to prevent the majority from doing so; not content with expressing its views and registering a protest, it raises the same objections at every stage in the passage of a bill; and sometimes strives to delay and even to destroy measures which it would itself enact if in power. Its immediate object is, in fact, to discredit the cabinet. Now this sounds mischievous, and would be so were Parliament the ultimate political authority. But the parties are really in the position of barristers arguing a case before a jury, that jury being the national electorate; and experience has shown, contrary to the prepossessions of non-professional legal reformers in all ages, that the best method of attaining justice is to have a strong advocate argue on each side before an impartial umpire. Unfortunately the jurymen in this case are not impartial, and the arguments are largely addressed to their interests, but that is a difficulty inseparable from democracy, or, indeed, from any form of government.

[Sidenote: Waste of Capacity.]

Another result of party government that is constantly decried is the waste of capacity it involves. Why, it is asked, should an excellent administrator leave his post, because some measure quite unconnected with his department--a measure, it may be, that he has himself opposed in the cabinet--is rejected by the House of Commons? Such a system interferes with that continuity of policy which is often essential to success both in foreign and internal affairs, and this is, no doubt, an evil; but owing to the presence of a highly trained body of permanent officials, who carry on the traditions and largely control the policy of the departments, it is not so important in England as one might suppose. The system also debars one half of the talent in public life from the service of the state; but this misfortune is one that, for one reason or another, has existed to some extent in all countries at all times. The idea of a state where all the ablest men in the land join, without regard to political opinions, to devote the best of their talents to the public service, is enchanting, but it has never been permanently realised anywhere.

[Sidenote: Issues not Decided solely on their Merits.]

Another criticism levelled at party government in England arises from the impossibility of supporting the party in power on one issue and opposing it on another. A voter at the last election who objected strongly to any change in fiscal policy, and equally strongly to any concessions on the subject of Home Rule, found himself on the horns of a dilemma. He was compelled to make up his mind which issue he thought most important, and trust to Providence about the other. In a party government, where the cabinet must resign if any of its vital measures are rejected, those measures cannot be considered by individuals on their merits. The policy of one party or the other must be supported as a whole. This is certainly a limitation on personal freedom of action, and it acts as a restraint just to the extent that the government is conducted strictly on party lines. The party system certainly involves compromise of opinion; but then there is some compromise required for the enactment of every public measure, whether parties exist or not, for it never happens that the legislators who vote for any bill are all perfectly satisfied with every one of its clauses.

Government by party is not an ideal regimen. Like everything else it contains both good and evil. A political organisation, indeed, that avoided all strife and all waste would certainly be impossible, and would probably, by relaxing effort and sapping the springs of human nature, prove undesirable. As yet it is too early to strike a final balance between the merits and the defects of the party system in England, and it would be hopeless to attempt it here. Both good and evil will appear more fully as we proceed.

FOOTNOTES:

[435:1] Rohmer's Lehre von den politischen Parteien, which attempts to explain the division into parties by natural differences of temperament corresponding to the four periods of man's life, is highly suggestive, but is rather philosophic than psychological; and like most philosophical treatises on political subjects it is based upon the writer's own time and place rather than upon a study of human nature under different conditions.

[436:1] In his oft-quoted, but very brief, remarks in the "Observations on 'The Present State of the Nation,'" and "Thoughts on the Cause of the Present Discontents." But twenty-five years later in a letter to Richard Burke he falls into the current talk about the evils of domination by a faction.

[437:1] E.g. Redlich, Recht und Technik, 74-79.

[437:2] Cf. Review of his unpublished "Recollections of a Long Life," in the Edinburgh Review, April, 1871, p. 301.

[438:1] Neither in France nor in Italy does the constitution really perform that service; because in each case it does little more than fix the framework of the government, without placing an effective restraint upon legislative action; and because the constitution itself is not felt to be morally binding by the irreconcilables.

[439:1] For the views of these men on the relation of parties or "factions" to public life see "The Federalist," No. 10, written by Madison.

[440:1] Professor Max Farrand has pointed out to me that the question of having the electors for the whole country meet in one place was discussed in the Constitutional Convention, and was rejected in favour of the present plan, because under the latter, "As the Electors would vote at the same time throughout the U.S. and at so great a distance from each other, the great evil of cabal was avoided." G. Hunt's "Writings of Madison," IV., 365-66. Cabal had a vague and spectral meaning, but covered anything in the nature of party. The exclusion from the electoral college of members of Congress and federal office-holders was defended on the same ground. Cf. "The Federalist," No. 68.

[441:1] In his "Rise and Growth of American Politics," a book full of penetrating suggestions, Mr. Henry Jones Ford has argued that party exists in America in order to bring about an accord among public bodies that were made independent by the Constitution; to force into harmonious action the various representatives of the people. Professor Goodnow develops the same idea from a different standpoint in his "Politics and Administration." But, especially in view of the comparatively small accord among public bodies, or harmonious action of the public representatives, and the enormous influence of parties in elections, it seems to the writer more correct to say that parties in America exist mainly for the selection of candidates.

[441:2] This subject is treated in Dupriez's admirable work Les Ministres, in Bodley's "France," and in the writer's "Governments and Parties in Continental Europe."

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XXV. PARTY ORGANISATION IN PARLIAMENT

[Sidenote: The Need of Whips.]

In every legislative body a vote is supposed to express the sense of the House, and there is a universal fiction that all the members are constantly present; but this is often far from being the fact; and it always behooves any one interested in a particular matter to expend no small amount of labour in making sure that those persons who agree with him are on hand when the decisive moment comes. All this applies with peculiar force to the House of Commons; for not only the fate of the particular measure under consideration, but the very life of the ministry itself, may depend upon a single division; and it is the more true because the average attendance, while a debate is going on, is unusually small. When the division bell rings, two minutes are, indeed, given for the members to rush in from the lobbies, the library, the smoking and dining rooms, and the terrace, yet the government cannot trust to luck for the presence of enough of its followers in the precincts of the House to make up a majority. There must be someone whose duty it is to see that they are within call.

[Sidenote: Who They Are.]

The duty of keeping the members of a party on hand is performed by the whips, whose name is abbreviated from the men who act as whippers-in at a fox-hunt. They are all members of the House, and those on the government side receive salaries from the public purse on the theory that it is their business to "keep a house" during supply; that is, to insure the presence of a quorum, so that the appropriations may be voted. The chief government whip holds the office of Parliamentary Secretary to the Treasury, with a salary of 2000_l._ Formerly he was often called simply the Secretary of the Treasury--an expression occasionally confusing to the readers of books written a generation ago. He is sometimes called, also, Patronage Secretary of the Treasury; and in old times no small part of his functions consisted in distributing patronage, in the days when it was freely employed to secure the support of members of Parliament. In fact he is still a channel for the disposition of such minor patronage as remains in the gift of the Prime Minister, including the creation of lesser titles. He is assisted by three other members, who hold the office of Junior Lords of the Treasury, with the salary of 1000_l._ apiece.[449:1] As has already been explained, the Treasury Board never meets, so that the duties of the Junior Lords are to-day almost entirely confined to acting as whips; and, to enable them to do that more effectively, one of them is always a Scotch member. The position of whip is one of great importance, but it entails some sacrifices, for by custom the whips take no part in debate, and although their work is felt throughout the House, it is little seen by the public. The chief whip, however, is often given afterwards a position in the ministry, or otherwise rewarded.

The Opposition also has its whips, usually three in number, whose position is important; though not so important as that of the government whips, because while a failure to have the full strength of the party present may be unfortunate, it cannot, as in the case of the government, be disastrous. Naturally the Opposition whips have no salaries, but they are sustained by the hope that their turn will come.

[Sidenote: Duties of the Whips.]

The government whips act as the aides-de-camp, and intelligence department, of the leader of the House. In the former capacity they arrange for him with the whips on the other side those matters in which it is a convenience to have an understanding. The membership of select committees, for example, is generally settled between the chief whips on the two sides of the House; and the time when the test vote on some great measure will take place is usually arranged beforehand in the same way.

[Sidenote: They bring in the Members.]

When an important division is likely to occur, each side musters its whole force for a great trial of strength; and not only the majority, but the size of the majority, is a matter of importance to the ministers, for it shows how completely they can depend upon the support of their followers. But it is not on vital questions alone that the government must avoid being beaten, because a defeat, even though not such a one as would cause resignation, nevertheless weakens to some extent the credit of the cabinet. It gives the public the impression that the ministers are losing popularity; either that their followers are becoming rebellious and voting against them, or, at least, that they are so far indifferent or disaffected as to stay away. Nothing succeeds like success; and it is a maxim in politics as well as in war that one must maintain a reputation for being invincible. Any defeat of the government always causes cheers of triumph among the Opposition; and especially of late years, when defeats have become more rare, it is a thing that requires explanation.

The whips must, therefore, always keep a majority within sound of the division bell whenever any business that may affect the government is under consideration. For this purpose they are in the habit of sending out almost every day to all their supporters lithographed notices stating that a vote on such and such a matter is likely to come on, and requesting the attendance of the member. These notices are underscored, in accordance with the importance of attendance, from a single line, meaning that the whip desires the member's attendance, to four lines, or a couple of very thick lines, which mean "come on pain of being thought a deserter." In fact the receipt of messages of this kind is the test of party membership. In 1844 a correspondence on the subject took place between Peel and Disraeli shortly before the final breach occurred. Disraeli, who had been criticising the policy of the government in Ireland and Servia, was not sent the usual whips, and protested on the ground that he had not ceased to be a member of the party.[451:1]

All this is not so important in the case of the Opposition; for, the consequences of being caught napping are not so serious. It is enough for them to summon their full force from time to time, when a good chance for a large vote occurs. The proceedings of their whips, therefore, though generally the same, are somewhat less systematic.

[Sidenote: They must Know that the Members are Present.]

[Sidenote: Snap Votes.]

The whips act also as an intelligence department for the government leader. It is their business not only to summon the members of the party to the House, but to know that they are there. By the door leading to the coat room, through which the members ordinarily enter the House from Palace Yard, there are seats; and here may always be seen one of the government whips, and often one from the Opposition. Each of them takes note of every member who goes in and out, sometimes remonstrating with him if he is leaving without sufficient reason. By this means the whip is expected to be able, at any moment, to tell just how large a majority the government has within the precincts of the House; and on the most important divisions the whip sees that every member of the party, who is well, is either present or paired. Of course, the same thoroughness cannot be attained on smaller questions; and although the government whip tries to have constantly on hand more members of his own party than of the Opposition, it is not always possible to do so. He may have expected a vote to take place at a given hour, and sent out a notice to every one to be present at that time, and the debate may suddenly show signs of coming to an end earlier. In that case it is usually possible to get some member of the government to talk against time while the needed members are fetched in. At times even this resource fails, and the government is occasionally defeated on what is known as "a snap vote."

[Sidenote: That of 1895.]

Humorous anecdotes are told of frantic attempts to bring in the members, and of practical jokes in trying to prevent it;[452:1] but the only one of these cases that led to serious results occurred in 1895. The Liberal government had been desperately clinging for life to a small majority of about a dozen, when there came on for debate a motion to reduce the salary of the Secretary of State for War, made in order to draw attention to an alleged lack of cordite. The whips sitting by the regular entrance of the House had in their tally the usual majority for the government; but a score of Tories had gone from the Palace Yard directly to the terrace, without passing through the ordinary coat-room entrance. When the division bell rang they came straight from the terrace to the House, and to the surprise no less of the tellers than of every one else, the government was defeated by a few votes. This was clearly a "snap" division, which would not ordinarily have been treated as showing a lack of confidence in the ministry. But the time comes when a tired man in the sea would rather drown than cling longer; and that was the position of Lord Rosebery's government.

[Sidenote: Whips must Know the Temper of the Party.]

The whips keep in constant touch with the members of their party. It is their business to detect the least sign of disaffection or discontent; to know the disposition of every member of the party on every measure of importance to the ministry, reporting it constantly to their chief. A member of the party, indeed, who feels that he cannot vote for a government measure, or that he must vote for an amendment to it, is expected to notify the whip. If there are few men in that position, so that the majority of the government is ample, and the result is not in danger, the whip will make no objection. A novice in the strangers' gallery, who hears three or four men on the government side attack one of its measures vigorously, sometimes thinks that there is a serious risk of defeat; but if he watched the countenance of the chief whip on the extreme end of the Treasury Bench, he would see no sign of anxiety, and when the division takes place the majority of the government is about the normal size. The fact is that the whip has known all along just how many men behind him would vote against the government, just how many would stay away, and that it really made no difference.

[Sidenote: Methods of Pressure on Members.]

[Sidenote: Fear of Dissolution.]

If, on the other hand, the majority of the government is narrow, or the number of refractory members is considerable, the whip will try to reason with them; and in a crisis, where a hostile vote will be followed by a dissolution, or by a resignation of the ministry which involves, of course, a dissolution, his reasoning is likely to be effective; for no member wants to face unnecessarily the expense of a general election, or the risk of losing his seat. The strength of motives of this kind naturally depends very much upon his tenure of the seat. If, as sometimes happens, he is the only member of the party who has a good chance of carrying the seat, or if his local or personal influence there is so strong that he is certain to carry it, he will hold a position of more than usual independence. But this is rarely the case.

[Sidenote: Action of Constituents.]

Nor is the fear of dissolution the only means by which pressure can be brought to bear upon a member who strays too far from the party fold. His constituents, or the local party association--which for this purpose is much the same thing--can be relied upon to do something. Any direct attempt by the whips to bring pressure upon a member through his constituents would be likely to irritate, and do more harm than good. But it is easy enough, in various ways, to let the constituents know that the member is not thoroughly supporting his party; and unless his vote against the government is cast in the interest of the constituents themselves, they are not likely to have much sympathy with his independence.

[Sidenote: Social Influence.]

Another means of pressure is found in social influence, which counts for much in English public life; and for that reason it is considered important to have as chief whip a man of high social standing as well as of pleasant manners and general popularity. The power of social influence has always been great in England, more particularly among the Conservatives. In 1853, Disraeli, who was trying hard to build up the Tory party, and had at the time little else to build it with, urged the importance of Lord Derby's asking all his followers in Parliament to dinner in the course of the session.[454:1] Nor does the use of influence of this kind appear to have declined. It has been said of late years that if a Unionist did not vote with his party, he was not invited to the functions at the Foreign Office; and the weakness of the Liberals for nearly a score of years after the split over Home Rule was due in no small part to the fact that they had very little social influence at their command. A sudden political conversion some years ago was attributed to disappointment of the member at the small number of invitations received through Liberal connections; and the change of faith no doubt met its reward, for it was followed in time by knighthood.

[Sidenote: Payment of Election Expenses.]

Finally the whips have, upon a certain number of members, a claim arising from gratitude. Elections are expensive for the candidate, and it is not always easy to find a man who is ready to incur the needful cost and trouble, especially when the chance of success is not large. Under these conditions the central office of the party, which is under the control of the leaders and the whip, will often contribute toward a candidate's expenses. It is done most frequently in well-nigh hopeless constituencies, and therefore the proportion of men who have received such aid is much greater among defeated than among elected candidates; although the cases are by no means confined to the former class. How often aid is given, and in what cases it is given, is never known, for the whip naturally keeps his own counsel about the matter; but the number of members on each side of the House, a part of whose election expenses have been paid from the party treasury, is not inconsiderable. Upon these men the whips have, of course, a strong claim which can be used to secure their attendance and votes when needed.

If all the means of pressure which the whips can bring to bear are unavailing, and the supporters of the government who propose to vote against it are enough to turn the scale, or if the whips report that the dissatisfaction is widespread, the cabinet will, if possible, modify its position. This is said to have been the real cause of the apparent surrender of the Liberal ministry to the demands of the Labour Party upon the bill to regulate the liability of trade unions in 1906. The whips found that many of their own followers had pledged themselves so deeply that they could not support the government bill as it stood.

[Sidenote: The Whips as Tellers.]

When the government is interested in the result of a vote, it informs the Speaker that it would like its whips appointed tellers in the division, a suggestion with which he always complies. This is the sign that the ministers are calling for the support of all their followers, and that the division is to be upon party lines. Often in the course of a debate upon some amendment to a government bill, one hears a member, rising behind the Treasury Bench, appeal to the leader of the House not to put pressure upon his supporters on that question. He means that the government whips shall not be made the tellers, in which case each member is free to vote as he thinks best without a breach of party loyalty, and the result, whatever it may be, is not regarded as a defeat for the cabinet. Occasionally this is done, but not often; because on the question so treated the government, in abandoning its leadership, is exposed to a charge of weakness; and also because it is unsafe to do it unless the ministers are quite indifferent about the result, for the effect of the pressure on the votes of many members is very great.

[Sidenote: No Other Party Machinery in Parliament.]

The whips may be said to constitute the only regular party organisation in the House of Commons, unless we include under that description the two front benches. The very fact, indeed, that the ministry and the leaders of the Opposition furnish in themselves the real party machinery of the House, avoids the need of any other. The ministers prepare and carry out the programme of the party in power, while a small coterie of leaders on the other side devise the plans for opposing them. The front bench thus does the work of a party committee or council, and in neither of the great parties is there anything resembling a general caucus for the discussion and determination of party policy. Sometimes a great meeting of the adherents of the party in Parliament is called at one of the political clubs or elsewhere, when the leaders address their followers. But it is held to exhort, not to consult; and, in fact, surprise is sometimes expressed by private members that the chiefs take them so little into their confidence.[456:1]

The organisation of the two great parties in Parliament has almost a military character, with the cabinet as the general staff, and the leader of the House as the commander in the field. This is naturally far less true of lesser groups, which have not the tradition of cabinet leadership to keep them in line. In their case a real caucus of the party, to consider the position it shall assume in a crisis, is not unknown. Two particularly celebrated meetings of that kind took place within a few years of each other: one held by the Liberal Unionists before the vote on the Home Rule Bill in 1886; the other the meeting of the Irish Nationalists which deposed Parnell from the leadership of the party in 1890.

A caucus of one of the two great parties has occasionally been held to select a leader in the House, in those rare cases where it has found itself in Opposition without a chief. This happened, for example, in 1899, when the post of leader having been left vacant by the retirement of Sir William Harcourt therefrom in the preceding December, the Liberal members of the House met on the day before the opening of the session, and chose Sir Henry Campbell-Bannerman to succeed him. Sir Henry thenceforward led the party in the Commons, and became, in due course, Prime Minister, when the Liberals came to power in 1905. Except, however, for an accident of that sort, neither of the two great parties has any machinery for choosing its chiefs, or deciding upon its course of action. The leaders, and when the party comes to power the ministers, are, no doubt, indirectly selected by the party itself, for they are the men who have shown themselves able to win its confidence, and command its support. But the choice is not made by any formal vote; nor is it always precisely such as would result from a vote. The Prime Minister, if not himself in the Commons, appoints the leader of the House and his principal lieutenants, being guided in the choice by his own estimate of their hold upon the party, and by the advice of the other chiefs. When appointed, the leader leads, and the party follows.

FOOTNOTES:

[449:1] Formerly the Parliamentary Groom in Waiting acted also as a whip; but the office was abolished in 1892.

[451:1] Parker, "Sir Robert Peel," III., 144-47.

[452:1] Macdonagh, "Book of Parliament," 372-78.

[454:1] Malmesbury, "Memoirs of an Ex-Minister," I., 382.

[456:1] See, for example, Sir Richard Temple, "Life in Parliament," and especially pp. 39-40.

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