The English Constitution (1894)/The House of Lords
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The House of Lords
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THE HOUSE OF LORDS.
In my last essay I showed that it was possible for a constitutional monarch to be, when occasion served, of first-rate use both at the outset and during the continuance of an administration; but that in matter of fact it was not likely that he would be useful. The requisite ideas, habits, and faculties, far surpass the usual competence of an average man, educated in the common manner of sovereigns. The same arguments are entirely applicable at the close of an administration. But at that conjuncture the two most singular prerogatives of an English king—the power of creating new peers and the power of dissolving the Commons—come into play; and we cannot duly criticise the use or misuse of these powers till we know what the peers are and what the House of Commons is.
The use of the House of Lords or, rather, of the Lords, in its dignified capacity—is very great. It does not attract so much reverence as the Queen, but it attracts very much. The office of an order of nobility is to impose on the common people—not necessarily to impose on them what is untrue, yet less what is hurtful; but still to impose on their quiescent imaginations what would not otherwise be there. The fancy of the mass of men is incredibly weak; it can see nothing without a visible symbol, and there is much that it can scarcely make out with a symbol. Nobility is the symbol of mind. It has the marks from which the mass of men always used to infer mind, and often still infer it. A common clever man who goes into a country place will get no reverence; but the “old squire” will get reverence. Even after he is insolvent, when every one knows that his ruin is but a question of time, he will get five times as much respect from the common peasantry as the newly-made rich man who sits beside him. The common peasantry will listen to his nonsense more submissively than to the new man’s sense. An old lord will get infinite respect. His very existence is so far useful that it awakens the sensation of obedience to a sort of mind in the coarse, dull, contracted multitude, who could neither appreciate nor perceive any other.
The order of nobility is of great use, too, not only in what it creates, but in what it prevents. It prevents the rule of wealth—the religion of gold. This is the obvious and natural idol of the Anglo-Saxon. He is always trying to make money; he reckons everything in coin; he bows down before a great heap and sneers as he passes a little heap. He has a “natural instinctive admiration of wealth for its own sake.” And within good limits the feeling is quite right. So long as we play the game of industry vigorously and eagerly (and I hope we shall long play it, for we must be very different from what we are if we do anything better), we shall of necessity respect and admire those who play successfully, and a little despise those who play unsuccessfully. Whether this feeling be right or wrong, it is useless to discuss; to a certain degree, it is involuntary; it is not for mortals to settle whether we will have it or not; nature settles for us that, within moderate limits, we must have it. But the admiration of wealth in many countries goes far beyond this; it ceases to regard in any degree the skill of acquisition; it respects wealth in the hands of the inheritor just as much as in the hands of the maker; it is a simple envy and love of a heap of gold as a heap of gold. From this our aristocracy preserves us. There is no country where a “poor devil of a is so ill off as in England.” The experiment is tried every day, and every day it is proved that money alone—money pur et simple—will not buy “London Society.” Money is kept down, and, so to say, cowed by the predominant authority of a different power.
But it may be said that this is no gain; that worship for worship, the worship of money is as good as the worship of rank. Even granting that it were so, it is a great gain to society to have two idols: in the competition of idolatries the true worship gets a chance. But it is not true that the reverence for rank—at least, for hereditary rank—is as base as the reverence for money. As the world has gone, manner has been half-hereditary in certain castes, and manner is one of the fine arts. It is the style of society; it is in the daily-spoken intercourse of human beings what the art of literary expression is in their occasional written intercourse. In reverencing wealth we reverence not a man, but an appendix to a man; in reverencing inherited nobility, we reverence the probable possession of a great faculty—the faculty of bringing out what is in one. The unconscious grace of life may be in the middle classes: finely-mannered persons are born everywhere; but it ought to be in the aristocracy: and a man must be born with a hitch in his nerves if he has not some of it. It is a physiological possession of the race, though it is sometimes wanting in the individual.
There is a third idolatry from which that of rank preserves us, and perhaps it is the worst of any—that of office. The basest deity is a subordinate employé, and yet just now in civilised governments it is the commonest. In France and all the best of the Continent it rules like a superstition. It is to no purpose that you prove that the pay of petty officials is smaller than mercantile pay; that their work is more monotonous than mercantile work; that their mind is less useful and their life more tame. They are still thought to be greater and better. They are decorés; they have a little red on the left breast of their coat, and no argument will answer that. In England, by the odd course of our society, what a theorist would desire has in fact turned up. The great offices, whether permanent or parliamentary, which require mind now give social prestige, and almost only those. An Under-Secretary of State with £2000 a-year is a much greater man than the director of a finance company with £5000, and the country saves the difference. But except in a few offices like the Treasury, which were once filled with aristocratic people, and have an odour of nobility at second-hand, minor place is of no social use. A big grocer despises the exciseman; and what in many countries would be thought impossible, the exciseman envies the grocer. Solid wealth tells where there is no artificial dignity given to petty public functions. A clerk in the public service is “nobody;” and you could not make a common Englishman see why he should be anybody.
But it must be owned that this turning of society into a political expedient has half spoiled it. A great part of the “best” English people keep their mind in a state of decorous. They maintain their dignity; they get obeyed; they are good and charitable to their dependants. But they have no notion of play of mind: no conception that the charm of society depends upon it. They think cleverness an antic, and have a constant though needless horror of being thought to have any of it. So much does this stiff dignity give the tone, that the few Englishmen capable of social brilliancy mostly secrete it. They reserve it for persons whom they can trust, and whom they know to be capable of appreciating its nuances. But a good government is well worth a great deal of social dulness. The dignified torpor of English society is inevitable if we give precedence, not to the cleverest classes, but to the oldest classes, and we have seen how useful that is.
The social prestige of the aristocracy is, as every one knows, immensely less than it was a hundred years or even fifty years since. Two great movements—the two greatest of modern society—have been unfavourable to it. The rise of industrial wealth in countless forms has brought in a competitor which has generally more mind, and which would be supreme were it not for awkwardness and intellectual gêne. Every day our companies, our railways, our debentures, and our shares, tend more and more to multiply these surroundings of the aristocracy, and in time they will hide it. And while this undergrowth has come up, the aristocracy have come down. They have less means of standing out than they used to have. Their power is in their theatrical exhibition, in their state. But society is every day becoming less stately. As our great satirist has observed, “The last Duke of St. David’s used to cover the north road with his carriages; landladies and waiters bowed before him. The present Duke sneaks away from a railway station, smoking a cigar, in a brougham.” The aristocracy cannot lead the old life if they would; they are ruled by a stronger power. They suffer from the tendency of all modern society to raise the average, and to lower—comparatively, and perhaps absolutely, to lower—the summit. As the picturesqueness, the featureliness, of society diminishes, aristocracy loses the single instrument of its peculiar power.
If we remember the great reverence which used to be paid to nobility as such, we shall be surprised that the House of Lords as an assembly, has always been inferior; that it was always just as now, not the first, but the second of our assemblies. I am not, of course, now speaking of the middle ages: I am not dealing with the embryo or the infant form of our Constitution; I am only speaking of its adult form. Take the times of Sir R. Walpole. He was Prime Minister because he managed the House of Commons; he was turned out because he was beaten on an election petition in that House; he ruled England because he ruled that House. Yet the nobility were then the governing power in England. In many districts the word of some lord was law. The “wicked Lord Lowther,” as he was called, left a name of terror in Westmoreland during the memory of men now living. A great part of the borough members and a great part of the country members were their nominees; an obedient, unquestioning deference was paid them. As individuals the peers were the greatest people; as a House the collected peers were but the second House.
Several causes contributed to create this anomaly, but the main cause was a natural one. The House of Peers has never been a House where the most important peers were most important. It could not be so. The qualities which fit a man for marked eminence, in a deliberative assembly, are not hereditary, and are not coupled with great estates. In the nation, in the provinces, in his own province, a Duke of Devonshire, or a Duke of Bedford, was a much greater man than Lord Thurlow. They had great estates, many boroughs, innumerable retainers, followings like a court. Lord Thurlow had no boroughs, no retainers; he lived on his salary. Till the House of Lords met, the dukes were not only the greatest, but immeasurably the greatest. But as soon as the House met, Lord Thurlow became the greatest. He could speak, and the others could not speak. He could transact business in half an hour which they could not have transacted in a day, or could not have transacted at all. When some foolish peer, who disliked his domination, sneered at his birth, he had words to meet the case: he said it was better for any one to owe his place to his own exertions than to owe it to descent, to being the “accident of an accident.” But such a House as this could not be pleasant to great noblemen. They could not like to be second in their own assembly (and yet that was their position from age to age) to a lawyer who was of yesterday,—whom everybody could remember without briefs,—who had talked for “hire,”—who had “hungered after six-and-eightpence.” Great peers did not gain glory from the House; on the contrary, they lost glory when they were in the House. They devised two expedients to get out of this difficulty: they invented proxies which enabled them to vote without being present,—without being offended by vigour and invective,—without being vexed by ridicule,—without leaving the rural mansion or the town palace where they were demigods. And what was more effectual still, they used their influence in the House of Commons instead of the House of Lords. In that indirect manner a rural potentate, who half returned two county members, and wholly returned two borough members,—who perhaps gave seats to members of the government, who possibly seated the leader of the Opposition,—became a much greater man than by sitting on his own bench, in his own House, hearing a chancellor talk. The House of Lords was a second-rate force, even when the peers were a first-rate force, because the greatest peers, those who had the greatest social importance, did not care for their own House, or like it, but gained great part of their political power by a hidden but potent influence in the competing House.
When we cease to look at the House of Lords under its dignified aspect, and come to regard it under its strictly useful aspect, we find the literary theory of the English Constitution wholly wrong, as usual. This theory says that the House of Lords is a co-ordinate estate of the realm, of equal rank with the House of Commons; that it is the aristocratic branch, just as the Commons is the popular branch; and that by the principle of our Constitution the aristocratic branch has equal authority with the popular branch. So utterly false is this doctrine that it is a remarkable peculiarity, a capital excellence of the British Constitution, that it contains a sort of Upper House, which is not of equal authority to the Lower House, yet still has some authority.
The evil of two co-equal Houses of distinct natures is obvious. Each House can stop all legislation, and yet some legislation may be necessary. At this moment we have the best instance of this which could be conceived. The Upper House of our Victorian Constitution, representing the rich wool-growers, has disagreed with the Lower Assembly, and most business is suspended. But for a most curious stratagem, the machine of government would stand still. Most constitutions have committed this blunder. The two most remarkable Republican institutions in the world commit it. In both the American and the Swiss Constitutions the Upper House has as much authority as the second: it could produce the maximum of impediment—the dead-lock, if it liked; if it does not do so, it is owing not to the goodness of the legal constitution, but to the discreetness of the members of the Chamber. In both these constitutions, this dangerous division is defended by a peculiar doctrine with which I have nothing to do now. It is said that there must be in a Federal Government, some institution, some authority, some body possessing a veto in which the separate States composing the Confederation are all equal. I confess this doctrine has to me no self-evidence, and it is assumed, but not proved. The State of Delaware is not equal in power or influence to the State of New York, and you cannot make it so by giving it an equal veto in an Upper Chamber. The history of such an institution is indeed most natural. A little State will like, and must like to see some token, some memorial mark of its old independence preserved in the Constitution by which that independence is extinguished. But it is one thing for an institution to be natural, and another for it to be expedient. If indeed it be that a Federal Government compels the erection of an Upper Chamber of conclusive and co-ordinate authority, it is one more in addition to the many other inherent defects of that kind of government. It may be necessary to have the blemish, but it is a blemish just as much.
There ought to be in every Constitution an available authority somewhere. The sovereign power must be come-at-able. And the English have made it so. The House of Lords, at the passing of the Reform Act of 1832, was as unwilling to concur with the House of Commons as the Upper Chamber at Victoria to concur with the Lower Chamber. But it did concur. The Crown has the authority to create new peers; and the king of the day had promised the ministry of the day to create them. The House of Lords did not like the precedent, and they passed the Bill. The power was not used, but its existence was as useful as its energy. Just as the knowledge that his men can strike makes a master yield in order that they may not strike, so the knowledge that their House could be swamped at the will of the king—at the will of the people—made the Lords yield to the people.From the Reform Act the function of the House of Lords has been altered in English History. Before that Act it was, if not a directing Chamber, at least a Chamber of Directors. The leading nobles, who had most influence in the Commons, and swayed the Commons, sat there. Aristocratic influence was so powerful in the House of Commons, that there never was any serious breach of unity. When the Houses quarrelled, it was as in the great Aylesbury case, about their respective privileges, and not about the national policy. The influence of the nobility was then so potent, that it was not necessary to exert it. The English Constitution, though then on this point very different from what it now is, did not even then contain the blunder of the Victorian or of the Swiss Constitution. It had not two Houses of distinct origin; it had two Houses of common origin—two Houses in which the predominant element was the same. The danger of discordance was obviated by a latent unity.
Since the Reform Act the House of Lords has become a revising and suspending House. It can alter Bills; it can reject Bills on which the House of Commons is not yet thoroughly in earnest—upon which the nation is not yet determined. Their veto is a sort of hypothetical veto. They say, We reject your Bill for this once or these twice, or even these thrice: but if you keep on sending it up, at last we won’t reject it. The House has ceased to be one of latent directors, and has become one of temporary rejectors and palpable alterers.
It is the sole claim of the Duke of Wellington to the name of a statesman, that he presided over this change. He wished to guide the Lords to their true position, and he did guide them. In 1846, in the crisis of the Corn-Law struggle, and when it was a question whether the House of Lords should resist or yield, he wrote a very curious letter to the late Lord Derby:—
“For many years, indeed from the year 1830, when I retired from office, I have endeavoured to manage the House of Lords upon the principle on which I conceive that the institution exists in the Constitution of the country, that of Conservatism. I have invariably objected to all violent and extreme measures, which is not exactly the mode of acquiring influence in a political party in England, particularly one in opposition to Government. I have invariably supported Government in Parliament upon important occasions, and have always exercised my personal influence to prevent the mischief of anything like a difference or division between the two Houses,—of which there are some remarkable instances, to which I will advert here, as they will tend to show you the nature of my management, and possibly, in some degree, account for the extraordinary power which I have for so many years exercised, without any apparent claim to it.
“Upon finding the difficulties in which the late King William was involved by a promise made to create peers, the number, I believe, indefinite, I determined myself, and I prevailed upon others, the number very large, to be absent from the House in the discussion of the last stages of the Reform Bill, after the negotiations had failed for the formation of a new Administration. This course gave at the time great dissatisfaction to the party; notwithstanding that I believe it saved the existence of the House of Lords at the time, and the Constitution of the country.
“Subsequently, throughout the period from 1835 to 1841, I prevailed upon the House of Lords to depart from many principles and systems which they as well as I had adopted and voted on Irish tithes, Irish corporations, and other measures, much to the vexation and annoyance of many. But I recollect one particular measure, the union of the provinces of Upper and Lower Canada, in the early stages of which I had spoken in opposition to the measure, and had protested against it; and in the last stages of it I prevailed upon the House to agree to, and pass it, in order to avoid the injury to the public interests of a dispute between the Houses upon a question of such importance. Then I supported the measures of the Government, and protected the servant of the Government, Captain Elliot, in China. All of which tended to weaken my influence with some of the party; others, possibly a majority, might have approved of the course which I took. It was at the same time well known that from the commencement at least of Lord Melbourne’s Government, I was in constant communication with it, upon all military matters, whether occurring at home or abroad, at all events. But likewise upon many others.
“All this tended of course to diminish my influence in the Conservative party, while it tended essentially to the ease and satisfaction of the Sovereign, and to the maintenance of good order. At length came the resignation of the Government by Sir Robert Peel, in the month of December last, and the Queen desiring Lord John Russell to form an Administration. On the 12th of December the Queen wrote to me the letter of which I enclose the copy, and the copy of my answer of the same date; of which it appears that you have never seen copies, although I communicated them immediately to Sir Robert Peel. It was impossible for me to act otherwise than is indicated in my letter to the Queen. I am the servant of the Crown and people. I have been paid and rewarded, and I consider myself retained; and that I can’t do otherwise than serve as required, when I can do so without dishonour, that is to say, as long as I have health and strength to enable me to serve. But it is obvious that there is, and there must be, an end of all connection and counsel between party and me. I might with consistency, and some may think that I ought to have declined to belong to Sir Robert Peel’s Cabinet on the night of the 20th of December. But my opinion is, that if I had, Sir Robert Peel’s Government would not have been framed; that we should have had —— and —— in office next morning.
“But, at all events, it is quite obvious that when that arrangement comes, which sooner or later must come, there will be an end to all influence on my part over the Conservative party, if I should be so indiscreet as to attempt to exercise any. You will see, therefore, that the stage is quite clear for you, and that you need not apprehend the consequences of differing in opinion from me when you will enter upon it; as in truth I have, by my letter to the Queen of the 12th of December, put an end to the connection between the party and me, when the party will be in opposition to her Majesty’s Government.
“My opinion is, that the great object of all is that you should assume the station, and exercise the influence, which I have so long exercised in the House of Lords. The question is, how is that object to be attained? By guiding their opinion and decision, or by following it? You will see that I have endeavoured to guide their opinion, and have succeeded upon some most remarkable occasions. But it has been by a good deal of management.
“Upon the important occasion and question now before the House, I propose to endeavour to induce them to avoid to involve the country in the additional difficulties of a difference of opinion, possibly a dispute between the Houses, on a question in the decision of which it has been frequently asserted that their lordships had a personal interest; which assertion, however false as affecting each of them personally, could not be denied as affecting the proprietors of land in general. I am aware of the difficulty, but I don’t despair of carrying the Bill through. You must be the best judge of the course which you ought to take, and of the course most likely to conciliate the confidence of the House of Lords. My opinion is, that you should advise the House to vote that which would tend most to public order, and would be most beneficial to the immediate interests of the country.”
This is the mode in which the House of Lords came to be what it now is, a chamber with (in most cases) a veto of delay with (in most cases) a power of revision, but with no other rights or powers. The question we have to answer is, “The House of Lords being such, what is the use of the Lords?”
The common notion evidently fails, that it is a bulwark against imminent revolution. As the Duke’s letter in every line evinces, the wisest members, the guiding members of the House, know that the House must yield to the people if the people is determined. The two cases—that of the Reform Act and the Corn Laws—were decisive cases. The great majority of the Lords thought Reform revolution, Free-trade confiscation, and the two together ruin. If they could ever have been trusted to resist the people, they would then have resisted it. But in truth it is idle to expect a second chamber—a chamber of notables—ever to resist a popular chamber, a nation’s chamber, when that chamber is vehement and the nation vehement too. There is no strength in it for that purpose. Every class chamber, every minority chamber, so to speak, feels weak and helpless when the nation is excited. In a time of revolution there are but two powers, the sword and the people. The executive commands the sword; the great lesson which the First Napoleon taught the Parisian populace—the contribution he made to the theory of revolutions at the 18th Brumaire—is now well known. Any strong soldier at the head of the army can use the army. But a second chamber cannot use it. It is a pacific assembly composed of timid peers, aged lawyers, or, as abroad, clever littérateurs. Such a body has no force to put down the nation, and if the nation will have it do something it must do it.
The very nature, too, as has been seen, of the Lords in the English Constitution, shows that it cannot stop revolution. The constitution contains an exceptional provision to prevent it stopping it. The executive, the appointee of the popular chamber and the nation, can make new peers, and so create a majority in the peers; it can say to the Lords, “Use the powers of your House as we like, or you shall not use them at all. We will find others to use them; your virtue shall go out of you if it is not used as we like, and stopped when we please.” An assembly under such a threat cannot arrest, and could not be intended to arrest, a determined and insisting executive.
In fact the House of Lords, as a House, is not a bulwark that will keep out revolution, but an index that revolution is unlikely. Resting as it does upon old deference, and inveterate homage, it shows that the spasm of new forces, the outbreak of new agencies, which we call revolution, is for the time simply impossible. So long as many old leaves linger on the November trees, you know that there has been little frost and no wind; just so while the House of Lords retains much power, you may know that there is no desperate discontent in the country, no wild agency likely to cause a great demolition.
There used to be a singular idea that two chambers—a revising chamber and a suggesting chamber—were essential to a free government. The first person who threw a hard stone—an effectually hitting stone—against the theory was one very little likely to be favourable to democratic influence, or to be blind to the use of aristocracy; it was the present Lord Grey. He had to look at the matter practically. He was the first great colonial minister of England who ever set himself to introduce representative institutions into all her capable colonies, and the difficulty stared him in the face that in those colonies there were hardly enough good people for one assembly, and not near enough good people for two assemblies. It happened—and most naturally happened—that a second assembly was mischievous. The second assembly was either the nominee of the Crown, which in such places naturally allied itself with better instructed minds, or was elected by people with a higher property qualification—some peculiarly well-judging people. Both these choosers choose the best men in the colony, and put them into the second assembly. But thus the popular assembly was left without those best men. The popular assembly was denuded of those guides and those leaders who would have led and guided it best. Those superior men were put aside to talk to one another, and perhaps dispute with one another; they were a concentrated instance of high but neutralised forces. They wished to do good, but they could do nothing. The Lower House, with all the best people in the colony extracted, did what it liked. The democracy was strengthened rather than weakened by the isolation of its best opponents in a weak position. As soon as experience had shown this, or seemed to show it, the theory that two chambers were essential to a good and free government vanished away.With a perfect Lower House it is certain that an Upper House would be scarcely of any value. If we had an ideal House of Commons perfectly representing the nation, always moderate, never passionate, abounding in men of leisure, never omitting the slow and steady forms necessary for good consideration, it is certain that we should not need a higher chamber. The work would be done so well that we should not want any one to look over or revise it. And whatever is unnecessary in government is pernicious. Human life makes so much complexity necessary that an artificial addition is sure to do harm: you cannot tell where the needless bit of machinery will catch and clog the hundred needful wheels; but the chances are conclusive that it will impede them somewhere, so nice are they and so delicate. But though beside an ideal House of Commons the Lords would be unnecessary, and therefore pernicious, beside the actual House a revising and leisured legislature is extremely useful, if not quite necessary. At present the chance majorities on minor questions in the House of Commons are subject to no effectual control. The nation never attends to any but the principal matters of policy and state. Upon these it forms that rude, rough, ruling judgment which we call public opinion; but upon other things it does not think at all, and it would be useless for it to think. It has not the materials for forming a judgment: the detail of Bills, the instrumental part of policy, the latent part of legislation, are wholly out of its way. It knows nothing about them, and could not find time or labour for the careful investigation by which alone they can be apprehended. A casual majority of the House of Commons has therefore dominant power: it can legislate as it wishes. And though the whole House of Commons upon great subjects very fairly represents public opinion, and though its judgment upon minor questions is, from some secret excellencies in its composition, remarkably sound and good; yet, like all similar assemblies, it is subject to the sudden action of selfish combinations. There are said to be two hundred “members for the railways” in the present Parliament. If these two hundred choose to combine on a point which the public does not care for, and which they care for because it affects their purse, they are absolute. A formidable sinister interest may always obtain the complete command of a dominant assembly by some chance and for a moment, and it is therefore of great use to have a second chamber of an opposite sort, differently composed, in which that interest in all likelihood will not rule.
The most dangerous of all sinister interests is that of the executive Government, because it is the most powerful. It is perfectly possible—it has happened, and will happen again—that the Cabinet, being very powerful in the Commons, may inflict minor measures on the nation which the nation did not like, but which it did not understand enough to forbid. If, therefore, a tribunal of revision can be found in which the executive, though powerful, is less powerful, the government will be the better; the retarding chamber will impede minor instances of parliamentary tyranny, though it will not prevent or much impede revolution.
Every large assembly is, moreover, a fluctuating body; it is not one house, so to say, but a set of houses; it is one set of men to-night and another to-morrow night. A certain unity is doubtless preserved by the duty which the executive is supposed to undertake, and does undertake, of keeping a house; a constant element is so provided about which all sorts of variables accumulate and pass away. But even after due allowance for the full weight of this protective machinery, our House of Commons is, as all such chambers must be, subject to sudden turns and bursts of feeling, because the members who compose it change from time to time. The pernicious result is perpetual in our legislation; many acts of Parliament are medleys of different motives, because the majority which passed one set of its clauses is different from that which passed another set.
But the greatest defect of the House of Commons is that it has no leisure. The life of the House is the worst of all lives—a life of distracting routine. It has an amount of business brought before it such as no similar assembly ever has had. The British Empire is a miscellaneous aggregate, and each bit of the aggregate brings its bit of business to the House of Commons. It is India one day and Jamaica the next; then again China, and then Schleswig-Holstein. Our legislation touches on all subjects, because our country contains all ingredients. The mere questions which are asked of the ministers run over half human affairs; the Private Bill Acts, the mere privilegia of our Government—subordinate as they ought to be—probably give the House of Commons more absolute work than the whole business, both national and private, of any other assembly which has ever sat. The whole scene is so encumbered with changing business, that it is hard to keep your head in it.
Whatever, too, may be the case hereafter, when a better system has been struck out, at present the House does all the work of legislation, all the detail, and all the clauses itself. One of the most helpless exhibitions of helpless ingenuity and wasted mind is a committee of the whole House on a Bill of many clauses which eager enemies are trying to spoil, and various friends are trying to mend. An Act of Parliament is at least as complex as a marriage settlement; and it is made much as a settlement would be if it were left to the vote and settled by the major part of persons concerned, including the unborn children. There is an advocate for every interest, and every interest clamours for every advantage. The executive Government by means of its disciplined forces, and the few invaluable members who sit and think, preserves some sort of unity. But the result is very imperfect. The best test of a machine is the work it turns out. Let any one who knows what legal documents ought to be, read first a will he has just been making and then an Act of Parliament; he will certainly say, “I would have dismissed my attorney if he had done my business as the legislature has done the nation’s business.” While the House of Commons is what it is, a good revising, regulating, and retarding House would be a benefit of great magnitude.
But is the House of Lords such a chamber? Does it do this work? This is almost an undiscussed question. The House of Lords, for thirty years at least, has been in popular discussion an accepted matter. Popular passion has not crossed the path, and no vivid imagination has been excited to clear the matter up.
The House of Lords has the greatest merit which such a chamber can have; it is possible. It is incredibly difficult to get a revising assembly, because it is difficult to find a class of respected revisers. A federal senate, a second House, which represents State Unity, has this advantage; it embodies a feeling at the root of society—a feeling which is older than complicated politics, which is stronger a thousand times over than common political feelings—the local feeling. “My shirt,” said the Swiss state-right patriot, “is dearer to me than my coat.” Every State in the American Union would feel that disrespect to the Senate was disrespect to itself. Accordingly, the Senate is respected; whatever may be the merits or demerits of its action, it can act; it is real, independent, and efficient. But in common governments it is fatally difficult to make an unpopular entity powerful in a popular government.
It is almost the same thing to say that the House of Lords is independent. It would not be powerful, it would not be possible, unless it were known to be independent. The Lords are in several respects more independent than the Commons; their judgment may not be so good a judgment, but it is emphatically their own judgment. The House of Lords, as a body, is accessible to no social bribe. And this, in our day, is no light matter. Many members of the House of Commons, who are to be influenced by no other manner of corruption, are much influenced by this its most insidious sort. The conductors of the press and the writers for it are worse—at least the more influential who come near the temptation; for “position,” as they call it, for a certain intimacy with the aristocracy, some of them would do almost anything and say almost anything. But the Lords are those who give social bribes, and not those who take them. They are above corruption because they are the corruptors. They have no constituency to fear or wheedle; they have the best means of forming a disinterested and cool judgment of any class in the country. They have, too, leisure to form it. They have no occupations to distract them which are worth the name. Field sports are but playthings, though some Lords put an Englishman’s seriousness into them. Few Englishmen can bury themselves in science or literature; and the aristocracy have less, perhaps, of that impetus than the middle classes. Society is too correct and dull to be an occupation, as in other times and ages it has been. The aristocracy live in the fear of the middle classes—of the grocer and the merchant. They dare not frame a society of enjoyment as the French aristocracy once formed it. Politics are the only occupation a peer has worth the name. He may pursue them undistractedly. The House of Lords, besides independence to revise judicially and position to revise effectually, has leisure to revise intellectually.
These are great merits: and, considering how difficult it is to get a good second chamber, and how much with our present first chamber we need a second, we may well be thankful for them. But we must not permit them to blind our eyes. Those merits of the Lords have faults close beside them which go far to make them useless. With its wealth, its place, and its leisure, the House of Lords would, on the very surface of the matter, rule us far more than it does if it had not secret defects which hamper and weaken it.
The first of these defects is hardly to be called secret, though, on the other hand, it is not well known. A severe though not unfriendly critic of our institutions said that “the cure for admiring the House of Lords was to go and look at it”—to look at it not on a great party field-day, or at a time of parade, but in the ordinary transaction of business. There are perhaps ten peers in the House, possibly only six; three is the quorum for transacting business. A few more may dawdle in or not dawdle in: those are the principal speakers, the lawyers (a few years ago when Lyndhurst, Brougham, and Campbell were in vigour, they were by far the predominant talkers) and a few statesmen whom every one knows. But the mass of the House is nothing. This is why orators trained in the Commons detest to speak in the Lords. Lord Chatham used to call it the “Tapestry.” The House of Commons is a scene of life if ever there was a scene of life. Every member in the throng, every atom in the medley, has his own objects (good or bad), his own purposes (great or petty); his own notions, such as they are, of what is; his own notions, such as they are, of what ought to be. There is a motley confluence of vigorous elements, but the result is one and good. There is a “feeling of the House,” a “sense” of the House, and no one who knows anything of it can despise it. A very shrewd man of the world went so far as to say that “the House of Commons has more sense than any one in it.” But there is no such “sense” in the House of Lords, because there is no life. The Lower Chamber is a chamber of eager politicians; the Upper (to say the least) of not eager ones.
This apathy is not, indeed, as great as the outside show would indicate. The committees of the Lords (as is well known) do a great deal of work and do it very well. And such as it is, the apathy is very natural. A House composed of rich men who can vote by proxy without coming will not come very much. But after every abatement the real indifference to their duties of most peers is a great defect, and the apparent indifference is a dangerous defect. As far as politics go there is profound truth in Lord Chesterfield’s axiom, that “the world must judge of you by what you seem, not by what you are.” The world knows what you seem; it does not know what you are. An assembly—a revising assembly especially—which does not assemble, which looks as if it does not care how it revises, is defective in a main political ingredient. It may be of use, but it will hardly convince mankind that it is so.
The next defect is even more serious: it affects not simply the apparent work of the House of Lords but the real work. For a revising legislature, it is too uniformly made up. Errors are of various kinds; but the constitution of the House of Lords only guards against a single error—that of too quick change. The Lords—leaving out a few lawyers and a few outcasts—are all landowners of more or less wealth. They all have more or less the opinions, the merits, the faults of that one class. They revise legislation, as far as they do revise it, exclusively according to the supposed interests, the predominant feelings, the inherited opinions, of that class. Since the Reform Act, this uniformity of tendency has been very evident. The Lords have felt—it would be harsh to say hostile, but still dubious, as to the new legislation. There was a spirit in it alien to their spirit, and which when they could they have tried to cast out. That spirit is what has been termed the “modern spirit.” It is not easy to concentrate its essence in a phrase; it lives in our life, animates our actions, suggests our thoughts. We all know what it means, though it would take an essay to limit it and define it. To this the Lords object; wherever it is concerned, they are not impartial revisers, but biased revisers.
This singleness of composition would be no fault; it would be, or might be, even a merit, if the criticism of the House of Lords, though a suspicious criticism, were yet a criticism of great understanding. The characteristic legislation of every age must have characteristic defects; it is the outcome of a character, of necessity faulty and limited. It must mistake some kind of things; it must overlook some other. If we could get hold of a complemental critic, a critic who saw what the age did not see, and who saw rightly what the age mistook, we should have a critic of inestimable value. But is the House of Lords that critic? Can it be said that its unfriendliness to the legislation of the age is founded on a perception of what the age does not see, and a rectified perception of what the age does see? The most extreme partisan, the most warm admirer of the Lords, if of fair and tempered mind, cannot say so. The evidence is too strong. On free trade, for example, no one can doubt that the Lords—in opinion, in what they wished to do, and would have done, if they had acted on their own minds—were utterly wrong. This is the clearest test of the “modern spirit.” It is easier here to be sure it is right than elsewhere. Commerce is like war; its result is patent. Do you make money or do you not make it? There is as little appeal from figures as from battle. Now no one can doubt that England is a great deal better off because of free trade; that it has more money, and that its money is diffused more as we should wish it diffused. In the one case in which we can unanswerably test the modern spirit, it was right, and the dubious Upper House—the House which would have rejected it, if possible—was wrong.
There is another reason. The House of Lords, being an hereditary chamber, cannot be of more than common ability. It may contain—it almost always has contained, it almost always will contain—extraordinary men. But its average born law-makers cannot be extraordinary. Being a set of eldest sons picked out by chance and history, it cannot be very wise. It would be a standing miracle if such a chamber possessed a knowledge of its age superior to the other men of the age; if it possessed a superior and supplemental knowledge; if it descried what they did not discern, and saw truly that which they saw, indeed, but saw untruly.
The difficulty goes deeper. The task of revising, of adequately revising the legislation of this age, is not only that which an aristocracy has no facility in doing, but one which it has a difficulty in doing. Look at the statute book for 1865—the statutes at large for the year. You will find, not pieces of literature, not nice and subtle matters, but coarse matters, crude heaps of heavy business. They deal with trade, with finance, with statute law reform, with common law reform; they deal with various sorts of business, but with business always. And there is no educated human being less likely to know business, worse placed for knowing business than a young lord. Business is really more agreeable than pleasure; it interests the whole mind, the aggregate nature of man more continuously, and more deeply. But it does not look as if it did. It is difficult to convince a young man, who can have the best of pleasure, that it will. A young lord just come into 30,000l. a year will not, as a rule, care much for the law of patents, for the law of “passing tolls,” or the law of prisons. Like Hercules, he may choose virtue, but hardly Hercules could choose business. He has everything to allure him from it, and nothing to allure him to it. And even if he wish to give himself to business, he has indifferent means. Pleasure is near him, but business is far from him. Few things are more amusing than the ideas of a well-intentioned young man, who is born out of the business world, but who wishes to take to business, about business. He has hardly a notion in what it consists. It really is the adjustment of certain particular means to equally certain particular ends. But hardly any young man destitute of experience is able to separate end and means. It seems to him a kind of mystery; and it is lucky if he do not think that the forms are the main part, and that the end is but secondary. There are plenty of business men falsely so called, who will advise him so. The subject seems a kind of maze. “What would you recommend me to read?" the nice youth asks; and it is impossible to explain to him that reading has nothing to do with it, that he has not yet the original ideas in his mind to read about; that administration is an art as painting is an art; and that no book can teach the practice of either.
Formerly this defect in the aristocracy was hidden by their own advantages. Being the only class at ease for money and cultivated in mind they were without competition; and though they might not be, as a rule, and extraordinary ability excepted, excellent in State business, they were the best that could be had. Even in old times, however, they sheltered themselves from the greater pressure of coarse work. They appointed a manager—a Peel or a Walpole, anything but an aristocrat in manner or in nature—to act for them and manage for them. But now a class is coming up trained to thought, full of money, and yet trained to business. As I write, two members of this class have been appointed to stations considerable in themselves, and sure to lead (if anything is sure in politics) to the Cabinet and power. This is the class of highly-cultivated men of business who, after a few years, are able to leave business and begin ambition. As yet these men are few in public life, because they do not know their own strength. It is like Columbus and the egg once again; a few original men will show it can be done, and then a crowd of common men will follow. These men know business partly from tradition, and this is much. There are University families—families who talk of fellowships, and who invest their children’s ability in Latin verses as soon as they discover it; there used to be Indian families of the same sort, and probably will be again when the competitive system has had time to foster a new breed. Just so there are business families to whom all that concerns money, all that concerns administration, is as familiar as the air they breathe. All Americans, it has been said, know business; it is in the air of their country. Just so certain classes know business here; and a lord can hardly know it. It is as great a difficulty to learn business in a palace as it is to learn agriculture in a park.To one kind of business, indeed, this doctrine does not apply. There is one kind of business in which our aristocracy have still, and are likely to retain long, a certain advantage. This is the business of diplomacy. Napoleon, who knew men well, would never, if he could help it, employ men of the Revolution in missions to the old courts; he said, “They spoke to no one, and no one spoke to them;” and so they sent home no information. The reason is obvious. The old-world diplomacy of Europe was largely carried on in drawing-rooms, and, to a great extent, of necessity still is so. Nations touch at their summits. It is always the highest class which travels most, knows most of foreign nations, has the least of the territorial sectarianism which calls itself patriotism, and is often thought to be so. Even here, indeed, in England the new trade-class is in real merit equal to the aristocracy. Their knowledge of foreign things is as great, and their contact with them often more. But, notwithstanding, the new race is not as serviceable for diplomacy as the old race. An ambassador is not simply an agent; he is also a spectacle. He is sent abroad for show as well as for substance; he is to represent the Queen among foreign courts and foreign sovereigns. An aristocracy is in its nature better suited to such work; it is trained to the theatrical part of life; it is fit for that if it is fit for anything.
But, with this exception, an aristocracy is necessarily inferior in business to the classes nearer business; and it is not, therefore, a suitable class, if we had our choice of classes, out of which to frame a chamber for revising matters of business. It is indeed a singular example how natural business is to the English race, that the House of Lords works as well as it does. The common appearance of the “whole House” is a jest—a dangerous anomaly, which Mr. Bright will sometimes use; but a great deal of substantial work is done in “Committees,” and often very well done. The great majority of the Peers do none of their appointed work, and could do none of it; but a minority—a minority never so large and never so earnest as in this age—do it, and do it well. Still no one, who examines the matter without prejudice, can say that the work is done perfectly. In a country so rich in mind as England, far more intellectual power can be, and ought to be, applied to the revision of our laws.
And not only does the House of Lords do its work imperfectly, but often, at least, it does it timidly. Being only a section of the nation, it is afraid of the nation. Having been used for years and years, on the greatest matters to act contrary to its own judgment, it hardly knows when to act on that judgment. The depressing languor with which it damps an earnest young Peer is at times ridiculous. “When the Corn Laws are gone, and the rotten boroughs, why tease about Clause IX. in the Bill to regulate Cotton Factories?” is the latent thought of many Peers. A word from the Leaders, from “the Duke,” or Lord Derby, or Lord Lyndhurst, will rouse on any matters the sleeping energies; but most Lords are feeble and forlorn.
These grave defects would have been at once lessened, and in the course of years nearly effaced, if the House of Lords had not resisted the proposal of Lord Palmerston’s first government to create peers for life. The expedient was almost perfect. The difficulty of reforming an old institution like the House of Lords is necessarily great; its possibility rests on continuous caste and ancient deference. And if you begin to agitate about it, to bawl at meetings about it, that deference is gone, its peculiar charm lost, its reserved sanctity gone. But, by an odd fatality, there was in the recesses of the Constitution an old prerogative which would have rendered agitation needless—which would have effected, without agitation, all that agitation could have effected. Lord Palmerston was—now that he is dead, and his memory can be calmly viewed—as firm a friend to an aristocracy, as thorough an aristocrat, as any in England; yet he proposed to use that power. If the House of Lords had still been under the rule of the Duke of Wellington, perhaps they would have acquiesced. The Duke would not indeed have reflected on all the considerations which a philosophic statesman would have set out before him; but he would have been brought right by one of his peculiarities. He disliked, above all things, to oppose the Crown. At a great crisis, at the crisis of the Corn Laws, what he considered was not what other people were thinking of, the economical issue under discussion, the welfare of the country hanging in the balance, but the Queen’s ease. He thought the Crown so superior a part in the Constitution, that, even on vital occasions, he looked solely—or said he looked solely—to the momentary comfort of the present sovereign. He never was comfortable in opposing a conspicuous act of the Crown. It is very likely that, if the Duke had still been the President of the House of Lords, they would have permitted the Crown to prevail in its well-chosen scheme. But the Duke was dead, and his authority—or some of it—had fallen to a very different person. Lord Lyndhurst had many great qualities: he had a splendid intellect—as great a faculty of finding truth as any one in his generation; but he had no love of truth. With this great faculty of finding truth, he was a believer in error—in what his own party now admit to be error—all his life through. He could have found the truth as a statesman just as he found it when a judge; but he never did find it. He never looked for it. He was a great partisan, and he applied a capacity of argument, and a faculty of intellectual argument rarely equalled, to support the tenets of his party. The proposal to create life-peers was proposed by the antagonistic party—was at the moment likely to injure his own party. To him this was a great opportunity. The speech he delivered on that occasion lives in the memory of those who heard it. His eyes did not at that time let him read, so he repeated by memory, and quite accurately, all the black-letter authorities bearing on the question. So great an intellectual effort has rarely been seen in an English assembly. But the result was deplorable. Not by means of his black-letter authorities, but by means of his recognised authority and his vivid impression, he induced the House of Lords to reject the proposition of the Government. Lord Lyndhurst said the Crown could not now create life-peers, and so there are no life-peers. The House of Lords rejected the inestimable, the unprecedented opportunity of being tacitly reformed. Such a chance does not come twice. The life-peers who would have been then introduced would have been among the first men in the country. Lord Macaulay was to have been among the first; Lord Wensleydale—the most learned and not the least logical of our lawyers—to be the very first. Thirty or forty such men, added judiciously and sparingly as years went on, would have given to the House of Lords the very element which, as a criticising Chamber, it needs so much. It would have given it critics. The most accomplished men in each department might then, without irrelevant considerations of family and of fortune, have been added to the Chamber of Review. The very element which was wanted to the House of Lords was, as it were, by a constitutional providence, offered to the House of Lords, and they refused it. By what species of effort that error can be repaired I cannot tell; but, unless it is repaired, the intellectual capacity can never be what it would have been, will never be what it ought to be, will never be sufficient for its work.
Another reform ought to have accompanied the creation of life-peers. Proxies ought to have been abolished. Some time or other the slack attendance of the House of Lords will destroy the House of Lords. There are occasions in which appearances are realities, and this is one of them. The House of Lords on most days looks so unlike what it ought to be, that most people will not believe it is what it ought to be. The attendance of considerate peers will, for obvious reasons, be larger when it can no longer be overpowered by the non-attendance, by the commissioned votes of inconsiderate peers. The abolition of proxies would have made the House of Lords a real House; the addition of life-peers would have made it a good House.
The greater of these changes would have most materially aided the House of Lords in the performance of its subsidiary functions. It always perhaps happens in a great nation, that certain bodies of sensible men posted prominently in its constitution, acquire functions, and usefully exercise functions, which at the outset, no one expected from them, and which do not identify themselves with their original design. This has happened to the House of Lords especially. The most obvious instance is the judicial function. This is a function which no theorist would assign to a second chamber in a new constitution, and which is matter of accident in ours. Gradually, indeed, the unfitness of the second chamber for judicial functions has made itself felt. Under our present arrangements this function is not intrusted to the House of Lords, but to a Committee of the House of Lords. On one occasion only, the trial of O’Connell, the whole House, or some few in the whole House, wished to vote, and they were told they could not, or they would destroy the judicial prerogative. No one, indeed, would venture really to place the judicial function in the chance majorities of a fluctuating assembly: it is so by a sleepy theory; it is not so in living fact. As a legal question, too, it is a matter of grave doubt whether there ought to be two supreme courts in this country—the Judicial Committee of the Privy Council, and (what is in fact though not in name) the Judicial Committee of the House of Lords. Up to a very recent time, one committee might decide that a man was sane as to money, and the other committee might decide that he was insane as to land. This absurdity has been cured; but the error from which it arose has not been cured—the error of having two supreme courts, to both of which as time goes on, the same question is sure often enough to be submitted, and each of which is sure every now and then to decide it differently. I do not reckon the judicial function of the House of Lords as one of its true subsidiary functions, first because it does not in fact exercise it, next because I wish to see it in appearance deprived of it. The supreme court of the English people ought to be a great conspicuous tribunal, ought to rule all other courts, ought to have no competitor, ought to bring our law into unity, ought not to be hidden beneath the robes of a legislative assembly.
The real subsidiary functions of the House of Lords are, unlike its judicial functions, very analogous to its substantial nature. The first is the faculty of criticising the executive. An assembly in which the mass of the members have nothing to lose, where most have nothing to gain, where every one has a social position firmly fixed, where no one has a constituency, where hardly any one cares for the minister of the day, is the very assembly in which to look for, from which to expect, independent criticism. And in matter of fact we find it. The criticism of the acts of late administrations by Lord Grey has been admirable. But such criticism, to have its full value, should be many-sided. Every man of great ability puts his own mark on his own criticism; it will be full of thought and feeling, but then it is of idiosyncratic thought and feeling. We want many critics of ability and knowledge in the Upper House—not equal to Lord Grey, for they would be hard to find—but like Lord Grey. They should resemble him in impartiality; they should resemble him in clearness; they should most of all resemble him in taking a supplemental view of a subject. There is an actor’s view of a subject, which (I speak of mature and discussed action—of Cabinet action) is nearly sure to include everything old and new—everything ascertained and determinate. But there is also a bystander’s view which is likely to omit some one or more of these old and certain elements, but also to contain some new or distant matter, which the absorbed and occupied actor could not see. There ought to be many life-peers in our secondary chamber capable of giving us this higher criticism. I am afraid we shall not soon see them, but as a first step we should learn to wish for them.
The second subsidiary action of the House of Lords is even more important. Taking the House of Commons, not after possible but most unlikely improvements, but in matter of fact and as it stands, it is overwhelmed with work. The task of managing it falls upon the Cabinet, and that task is very hard. Every member of the Cabinet in the Commons has to “attend the House;” to contribute by his votes, if not by his voice, to the management of the House. Even in so small a matter as the education department, Mr. Lowe, a consummate observer, spoke of the desirability of finding a chief “not exposed to the prodigious labour of attending the House of Commons.” It is all but necessary that certain members of the Cabinet should be exempt from its toil, and untouched by its excitement. But it is also necessary that they should have the power of explaining their views to the nation; of being heard as other people are heard. There are various plans for so doing, which I may discuss a little in speaking of the House of Commons. But so much is evident: the House of Lords, for its own members, attains this object; it gives them a voice, it gives them what no competing plan does give them—position. The leisured members of the Cabinet speak in the Lords with authority and power. They are not administrators with a right to speech—clerks (as is sometimes suggested) brought down to lecture a House, but not to vote in it; but they are the equals of those they speak to; they speak as they like, and reply as they choose; they address the House, not with the “bated breath” of subordinates, but with the force and dignity of sure rank. Life-peers would enable us to use this faculty of our Constitution more freely and more variously. It would give us a larger command of able leisure; it would improve the Lords as a political pulpit, for it would enlarge the list of its select preachers.
The danger of the House of Commons is, perhaps, that it will be reformed too rashly; the danger of the House of Lords certainly is, that it may never be reformed. Nobody asks that it should be so; it is quite safe against rough destruction, but it is not safe against inward decay. It may lose its veto as the Crown has lost its veto. If most of its members neglect their duties, if all its members continue to be of one class, and that not quite the best; if its doors are shut against genius that cannot found a family, and ability which has not five thousand a year, its power will be less year by year, and at last be gone, as so much kingly power is gone—no one knows how. Its danger is not in assassination, but atrophy; not abolition, but decline.
- In accordance with a recent resolution of the House of Lords, proxies are now disused. Note to second edition.