The Government of England Part 47

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 cla.s.s, 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 n.o.blemen 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 n.o.bility 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 t.i.tles--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 const.i.tuency 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 enn.o.ble 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 t.i.tle, 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 pa.s.sed 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 pa.s.s 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 a.s.sent, 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 pa.s.sed 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 princ.i.p.al 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 pa.s.sage 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 const.i.tuents 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 Sat.u.r.day 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 embarra.s.s 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 "Const.i.tutional 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.