The Mother of Parliaments Part 2

CHAPTER II

THE HOUSE OF LORDS

No const.i.tutional principle has been so strongly criticised and so freely abused as the one embodied in the hereditary chamber which forms so important a branch of our legislature. Pulteney labelled the House of Lords a "hospital for invalids"; Burke contemptuously referred to it as "the weakest part of the Const.i.tution"; Lord Rosebery has compared it to "a mediaeval barque stranded in the tideway of the nineteenth century." A more democratic modern statesman, who doubtless hopes--

"To build, not boast, a generous race; No tenth transmitter of a foolish face,"

has declared the only legislative qualifications of peers to consist in their being the first-born of persons possessing as little qualifications as themselves. While another politician cynically observes that they represent n.o.body but themselves, and enjoy the full confidence of their const.i.tuents.

The House of Lords has long been the b.u.t.t of the political satirist, and parliamentary reformers have attacked it for years patiently and persistently, hitherto without much success. "We owe the English Peerage to three sources," said a character in "Coningsby"; "the spoliation of the Church; the open and flagrant sale of its honours by the elder Stuarts; and the borough-mongering of our own times." And this bitter criticism is often quoted to prove the weakness of any form of hereditary government.

The suggestion that heredity can confer any peculiar qualifications, rendering a person more fit than his fellows for parliamentary power, is no doubt illogical, but not more so perhaps than a thousand other ideas which govern the affairs of men. The form of government by majority, for instance,--which Pope called "the madness of the many for the gain of a few"--is obviously open to criticism. Hereditary legislation has, at any rate in the eyes of its supporters, the merit of having answered well enough in practice, and, however theoretically indefensible, is not more so than hereditary kingship. The Sovereign does not inherit sagacity any more than the Duke of Norfolk, as Lord John Russell justly observed, and it would be unwise as well as unsafe to hang the Crown on the peg of an exception. It is as well, however, to remember that the Sovereign is a const.i.tutional monarch whose powers nowadays are much restricted, whereas the Lords have the right to exercise a legislative veto the use of which kings have long since resigned.

Talent is not hereditary. No man chooses a coachman, as the first Lord Halifax once remarked, because his father was a coachman before him.

But the descendant of a long line of coachmen is likely to know more about the care of horses than the grandson of a pork butcher, however eminent; and the scion of a race of legislators is at least as fully qualified for the duties of a legislator as many a politician whose chief reason for entering Parliament is the desire to add the letters M.P. to his name. Nevertheless, as has been recently pointed out by tactless statisticians, the great men of the past have but seldom bequeathed their admirable qualities to their _eldest_ sons, and in a list of modern statesmen will be found but few of the names once famous in English history.

The necessity for a second chamber of some sort has always been admitted, if only to prevent the other House from being exposed to what John Stuart Mill calls "the corrupting influence of undivided power," and Cromwell "the horridest arbitrariness that was ever known in the world." Few, however, of the most ardent admirers of the hereditary system will pretend that the problem of a perfect bicameral system is solved by the present House of Lords, though they may doubtless claim that the cause of its failure does not rest entirely upon its basis of heredity. "You might as well urge as an objection to the breakwater that stems the unruly waves of the sea, that it has its foundations deep laid in another element, and that it does not float on the surface of that which it is to control," said Palmerston, "as say that the House of Lords, being hereditary, ought on that account to be reformed."[37]

[37] In a speech delivered at a banquet in Glasgow on January 13, 1837.

If age can confer dignity and distinction upon any a.s.sembly, then must the House of Lords be peculiarly distinguished, for it is certainly the most venerable as well as the most antiquated of our Parliamentary inst.i.tutions.

When Christianity became firmly established in England, each king of the Heptarchy was attended by a bishop, whose business it was to advise his royal master upon religious questions, and who thus acquired the power of influencing him in other matters as well. The minor kings were gradually replaced by earls, who were summoned, together with their attendant bishops, to the Witenagemot of the one ruling sovereign of the country. An a.s.sembly of this nature was held as far back as 1086, but it was more in the nature of a judicial Court than a Parliament. It consisted of the Archbishop of Canterbury and all other bishops, earls, and barons, and was summoned to decide important judicial cases. This Court, or _Curia Regis_ as it was called, met at different times and in divers places. It transacted other business besides the judicial, and also corresponded to some extent with the more modern _levee_. It was originally composed of the Lords, the great officers of State, and some others whom the king wished to consult.

The exact position which such n.o.bles held in the great Council of the land is not very definite. Immediately after the Conquest an earldom appears to have been regarded as an office; but it was not necessarily hereditary. Later on the possession of lands, either granted direct by the Crown or inherited, became a necessary qualification for the holder of an earldom. The transfer of t.i.tles and property in early days was a rough and ready affair, in which might played as great a part as right. (When Edward I. required the old Earl de Warrenne to produce his t.i.tle deeds, the latter brought out a rusty sword that had belonged to his ancestors. "By this instrument do I hold my lands," he said, "and by the same do I intend to defend them!") But with the natural idea of the transference of land from father to son there developed the principle of the natural hereditary descent of the t.i.tle dependent upon the possession of those lands.

The baronage did not come into existence until after the Conquest. In the reign of Henry I. it was entirely composed of foreigners from France. Barons held no regular office, but their lands were transferred on the hereditary principle. They owed military allegiance to the Crown, but did not necessarily sit in Parliament unless summoned to attend by the king. Such a summons was long regarded as a burden rather than a privilege, and even in the days of King John the barons only desired it as a protection from the imposition of some exceptional tax. The bishops and barons were then the natural leaders of the people; they alone were educated and armed, and they alone could attempt any successful resistance to the exorbitant demands of the Crown. They paid nearly all the taxes, and provided money for the prosecution of every war. Upon them the commonalty was dependent, looking to them for a.s.sistance when the sovereign became too grasping or tyrannical. It was the barons who forced King John to sign Magna Charta, and to them, therefore, we are indebted for the laws and const.i.tution which we now possess. "They did not confine it to themselves alone," as Chatham declared in the House of Lords, on January 9, 1770, "but delivered it as a common blessing to the whole people." But though the present House of Lords has been described as composed of descendants of the men who wrung the Charter from King John on the plains of Runnymede, not more than four of the existing peerages are, as a matter of fact, as old as Magna Charta.

The feudal barons by tenure, whose right to a Parliamentary summons gradually became hereditary as going with their lands, were gradually joined by other prominent men who, though not landowners, were summoned to give the Council the benefit of their experience and advice. Thus gradually evolved the modern system of hereditary legislators, and the House of Lords developed into an a.s.sembly such as we now know it, though numerically far smaller.

In Richard II.'s reign the _Curia Regis_ separated from Parliament and became a Privy Council. The Lords were then as unwilling as the Commons to attend diligently to their Parliamentary duties, and it was only the subsequent creation of dukes, marquesses, and viscounts that stimulated the desire to sit and claim a writ of summons as a right.

The number of earls and barons summoned to Parliament in the reigns of the first three Edwards varied from fifty to seventy-five. At times, owing to the absence of the fighting men of the country who were engaged in foreign warfare, it fell as low as sixteen. In the first Parliament of Henry VIII. there were less than thirty temporal peers, but in Elizabeth's time this number had doubled. Since Stuart days the Lords have become more and more numerous. James I. granted peerages right and left to his favourites, and, by selling baronies, viscountcies, and earldoms for sums ranging from 10,000 to 20,000, enriched his coffers and added some fifty members to the Upper House.

The eighty-two temporal peers who sat in his first Parliament were gradually reinforced by his successors, until, in the time of George III., they numbered two hundred and twenty-four, exclusive of their ecclesiastical brethren.

The Lords spiritual have not always sat in the House of Lords. In early days the abbots and priors largely predominated in that a.s.sembly, but with the abolition of the monasteries they were banished from it, though a certain number retained their seats in right of the baronies which they possessed.[38] Bishops were excluded from the House of Lords by Act of Parliament in 1640--Cromwell omitted to summon them to his Upper House in 1657--and were not finally readmitted until 1661. Within living memory several unsuccessful attempts have been made to keep them out of Parliament. In 1836 a member of the Commons moved that spiritual peers be released from attendance, but his motion was defeated. Another member in the following year suggested their exclusion on the ground that they had plenty to occupy them elsewhere, that their contributions to debate upon most legislative subjects were not particularly edifying, and that they always voted with the Minister to whom they were indebted for preferment. This motion met a fate similar to that of its predecessor, as did another of the same kind in 1870.

[38] In the sixteenth century the Prior of the Hospital of St. John of Jerusalem (near Clerkenwell), whom Selden calls "a kind of an otter, a knight half-spiritual and half-temporal," had precedence of all the lay barons in Parliament. His priory was suppressed in 1536, but his name continued to appear spasmodically in the Journals of the House of Lords until some time in Queen Elizabeth's reign.

To-day some twenty-six spiritual peers, including the two Archbishops of Canterbury and York, are given seats in the House of Lords, where they help to swell the number of that ever-increasing a.s.sembly.

Bishops usually confine themselves exclusively in the House of Lords to the discussion of matters which concern the spiritual welfare of the nation. Their contributions to debates are generally "edifying,"

and when they happen to cross swords with their lay brethren they are well able to hold their own. Bishop Atterbury, of Rochester, once said of a Bill before the House that he had often prophesied that such a measure would be brought up, and was sorry to find himself a true prophet. Lord Coningsby retorted that the Right Reverend Prelate had put himself forward as a prophet, but he would only liken him to a Balaam, who was reproved by his own a.s.s. The Bishop at once replied that he was well content to be compared to Balaam. "But, my Lords," he added, "I am at a loss to make out the other part of the parallel. I am sure that I have been reproved by n.o.body but his Lordship!"[39]

[39] Dr. King's "Anecdotes," p. 130. (It was a more modern politician who, on being reproved by an opponent, said, "Consider the case of Balaam's a.s.s; before it spoke all men regarded it as quite an ordinary quadruped, but after it had spoken they discovered what an extraordinary a.s.s it was!")

With the creation of new peerages by successive monarchs the list of temporal peers lengthened year by year. The Union of the three kingdoms still further added to their number. By the Acts of Union with Scotland and Ireland it was laid down that sixteen Scottish and twenty-eight Irish representative peers should sit in the House of Lords. These were to be elected by their fellow-peers, the former for each Parliament, the latter for life.[40] They may be distinguished in other particulars as well, for though a Scottish peer can at any time resign his seat, an Irish peer can never do so. Even though he be a lunatic, or otherwise incapable of attending, he still retains his place in the legislature. He is also privileged in other ways. In 1699 the Commons resolved that no peer could give his vote at the election of a Member of Parliament, and, three years later, that he could not interfere in elections. To-day a standing order of the House of Commons imposes the same restraint upon all but Irish peers, who are exempt from these restrictions.

[40] In November, 1908, the election of an Irish peer resulted in a tie between Lords Ashtown and Farnham. Such a thing had not happened since the Union. The difficulty was settled in a manner only perhaps possible in an inst.i.tution as venerable as the House of Lords. In accordance with the provisions of the Act of Union, the Clerk of the Parliaments wrote the names of the candidates on two pieces of paper which he then put into a gla.s.s. One of these he drew out at random, and the peer whose name was inscribed thereon was declared to be duly elected.

In 1875 the House of Lords was strengthened judicially by the introduction of four Lords of Appeal. The House, as is well known, has judicial as well as legislative functions to perform. It has always been the Supreme Court of the realm, and, ever since the reign of Queen Elizabeth, the ultimate Appeal has lain to it in all cases except those arising in Ecclesiastical Courts. Moreover, as the High Court of Parliament, in conjunction with the Commons, it is empowered to try offenders against the State whom the Commons have impeached. It also enjoys the privilege of trying any of its own members who may be charged with treason or felony, and of determining any disputed claims of peerage which may arise.

There have always been a sufficient number of Lords learned in the law to provide a court for the trial of legal cases. In the past, however, occasions have arisen when the presence of lay peers has threatened to replace the judicial aspect of the House by a political one which would be fatal to its reputation as a court of appeal. It was not, indeed, until 1845 that lords unlearned in the law began to consider their presence during the hearing of judicial causes to be not only unnecessary but undesirable, and discontinued their attendance. Thirty years later the inst.i.tution of four life peerages, conferred upon eminent lawyers, added still further weight to the legal decisions of the House. The hearing of appeals is now left entirely to what are called the Law Lords, who consist of the Lord Chancellor, a number of peers who have held certain high judicial offices, and the four Lords of Appeal in Ordinary--three of whom must, by the Appellate Jurisdiction Act of 1876, be present on all appeal cases.

The granting of life peerages, conferring rights of summons to the House of Lords, save as above stated, has been adjudged to be beyond the powers of the Crown. It may truly be said that in the first days of Parliament the House of Lords consisted almost entirely of life members. But when the Government of Queen Victoria attempted to revive a practice that had lain in abeyance for some centuries they were not allowed to do so.

The Supreme Court of Appeal had been violently attacked in the Commons, where certain members declared it to be inferior to any tribunal in the land. Palmerston in 1856 determined to remedy its defects by the addition of two Law Lords who should be life peers.

This scheme was upheld by the Lord Chancellor, Lord Cranworth, but met with determined opposition in the Upper House. The Law Lords were especially opposed to it, fearing that, if such a precedent were allowed, no lawyer in the future would ever be given an hereditary peerage. On the Premier's recommendation the Queen proposed to confer life peerages upon two distinguished lawyers, Parke and Pemberton Leigh, and proceeded to issue a patent to the former, creating him Baron Wensleydale for life. When, however, the matter was referred to the Committee for Privileges, they decided that no life peer could either sit or vote in the House of Lords, and the Wensleydale and Kingsdown peerages had consequently to be made hereditary.

Persons who are raised to the peerage to-day are made peers of the United Kingdom. No Scotch peer has been created since the Union in 1707, and the right of conferring an Irish peerage which existed under certain restrictions in the Act of Union has ceased to be exercised except upon one notable recent occasion.[41]

[41] Lord Curzon of Kedleston was so created in 1898.

During the last fifty years some one hundred and fifty additions have been made to the membership of the House of Lords. The only limit to the numerical increase of peers would seem to lie in the good sense of the Prime Minister or the patience of the Sovereign. It is of course the latter who confers peerages, though as the former usually brings suitable candidates for enn.o.blement to the royal notice, he is generally held responsible for the result of his recommendations.[42]

[42] When the last Liberal Government of Queen Victoria came into office the Court officials were discussing the new Administration one day at Windsor. "I wonder what peers they'll make," remarked one of the ladies-in-waiting. The Queen turned upon her with uplifted eyebrows. "_They!_" she exclaimed. An uncomfortable silence ensued.

Again, in 1909, a Cabinet Minister's allusion in a speech to certain newspaper proprietors whom a Conservative Prime Minister had "taken the precaution to make into barons" inspired the King's private Secretary to write a letter to a correspondent in which he stated that, notwithstanding the Minister's statement, "the creation of Peers remains a Royal prerogative."

[Ill.u.s.tration: THE HOUSE OF LORDS IN 1742

FROM AN ENGRAVING BY JOHN FINE]

The House of Lords now includes some 616 members, divided, as we have seen, into four cla.s.ses; the Lords Spiritual, the Lords Temporal--Princes of the Blood, Dukes, Marquesses, Earls, Viscounts, Barons--the Representative Peers of Scotland and Ireland, and the Lords of Appeal in Ordinary.

The writ of summons, which did not cease to be regarded as a burden until the reign of Edward II., is now looked upon as a privilege and right which few peers would willingly forego. And the question of mutual precedence which was never mooted until the creation of Viscounts in Henry VI.'s time, is now a matter of the utmost importance to the occupants of the Gilded Chamber.

The first Parliament that is recognized as conferring the right of peerage was that of the eleventh year of Edward I. The Lords decided, in the recent case of Lord Stourton claiming the Barony of Mowbray, that a writ summoning a peer to this Parliament, followed by a sitting, gave his descendants a seat in the House.

All Peers of the Realm--a phrase which came into use in 1322--are ent.i.tled to seats in the House of Lords once they have attained their majority. Infancy disqualifies a peer from receiving a writ of summons; failure to take the oath or to affirm deprives him of the right of sitting. No alien may sit in the Lords, nor may a bankrupt or a felon, and the House as a Court of Justice may at any time pa.s.s sentence disqualifying a peer from sitting.

The functions of the Upper House which have been the subject of so much recent controversy and are still engrossing the attention of Parliament and the public, have been in former times variously defined by friendly or adverse critics. The Lords have been described as the brake on the parliamentary wheel or as the clog in the parliamentary machine. Horace Walpole wrote some bitter verses on the subject of that House whose members "sleep in monumental state, to show the spot where their great Fathers sate;"

"Thou senseless Hall, whose injudicious s.p.a.ce, Like Death, confounds a various mismatched race, Where Kings and clowns, th' ambitious and the mean, Compose th' inactive soporific scene."[43]

[43] "Letters to Sir H. Mann," vol. i. p. 380.

Peers themselves no doubt regard the Upper Chamber as a haven where merit may receive its ultimate reward; where the achievements and the recompense of the deserving are suitably immortalized. As a "compact bulwark against the temporary violence of popular pa.s.sion," to use Disraeli's phrase, and as a council for weighing the resolutions of the Commons who may at times be led away by public clamour or a sudden impulse, the Second Chamber is regarded by its defenders as of the greatest const.i.tutional value. Lord Salisbury once declared that the chief duty of the House of Lords was to represent the permanent as opposed to the pa.s.sing feelings of the English nation; "to interpose a salutary obstacle to rash or inconsiderate legislation; and to protect the people from the consequences of their own imprudence." Moreover, the Upper House thus has an opportunity of improving the details of measures, many of which leave the House of Commons in an unworkable shape, owing to the conditions under which they are amended and pa.s.sed through it, and, but for the alterations effected by the Lords, would remain unworkable when they came to be embodied in the Statute-book.

It has never been the course of the Upper House to resist a continued and deliberately expressed public opinion. The Lords, as Lord Derby affirmed in 1846, "always have bowed and always will bow, to the expression of such opinion."[44] But although history to a certain extent bears out this statement, on more than one occasion the hand of popular clamour has battered at their doors for a long time before wringing from them a reluctant acquiescence. There can be no doubt that if the country were to express itself definitely upon any question at a General Election, no House of Lords would be strong enough (or weak enough) to attempt to thwart the public will. But there have been numerous instances in which the peers have endeavoured without success to do so. In vain did they delay Parliamentary Reform in 1831, when Sidney Smith likened the House of Lords to Mrs.

Partington, the old lady of Sidmouth who, during the great storm of 1824, tried to push away the Atlantic with her mop.[45] In vain did they inveigh against the pa.s.sing of the Jewish Oaths Bill or the Bill for the abolition of the Corn Laws. They were eventually compelled to pa.s.s the latter, not because they thought it a good Bill, but because, as the Duke of Wellington said, it had pa.s.sed the House of Commons by a huge majority, and "the Queen's Government must be supported."

[44] On the Second Reading of the Corn Importation Bill, May 25, 1846.

[45] "Works," p. 564.

On the other side it may be said that they have occasionally interpreted more successfully than the Lower House the views of the electorate, and of this perhaps the rejection of the Home Rule Bill of 1893 is the most prominent example.