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Jurisdiction of the House of Lords. 19
subserviency of one, or of its degeneration, or of its being an anachronism, or of its needing radical reconstruction, or of the adventitious force it may owe to the presence of members of the Cabinet, and yet of the impotency of any devices to arrest the absorption of one Assembly into the other. So long as the two Assemblies are regarded as wholly separate and rival, not to say hostile, all sorts of crude and unpractical schemes will be afloat to reform one or the other House in a way which will be found persistently blocked by the spirit ©f the Constitution.
The history of the period under review has exhibited a series of improvements in the constitution of each House, and, it may be said, in the relations of the Houses to each other. The modifications in the constitution of the House of Lords are not of considerable importance, though, so far as they go, they point in the direction of making that House a more effective portion of the Legislature, and not in that of crippling and weakening it. The House has, in both its aspects, as a judicial and a legislative body, passed through two critical epochs, in the former of which characters it has been strengthened, and in the latter of which it has been weakened only in appearance, through having the region of its activity more strictly determined. After much controversy and some inconsistent legislation, the Appellate Jurisdiction Act of 1876 entirely remodelled the House of Lords as a court of final judicial appeal. Without derogating from the privileges of all Peers, that Act provided that three Peers, specially selected on the ground of their presumed legal capacity, must necessarily be present at the trial of appeals. The three were to be selected out of a list including the Lord Chancellor, Peers who had held 'high judicial 'office,' and two,—and, at a certain time thereafter, four, —' Lords of Appeal in Ordinary.' These Lords of Appeal in Ordinary were to be specially created Peers for the purpose, to rank as Barons, and to be entitled to a Writ of Summons to attend and to sit and vote in the House of Lords; but their ' dignity as Lords of Parliament was 'not to descend to their heirs.' This last part of the enactment had in principle been recommended by a Committee of the Lords, appointed in consequence of the disputed right of the Crown to grant a life peerage to Baron Parke in 1856. This Committee proposed that Her Majesty should be empowered by Statute ' to 'confer life peerages upon two persons who had served * for five years as judges, and that they should sit with 'the Lord Chancellor as Judges of Appeal and Deputy'Speakers.' A Bill founded on this recommendation was passed by the House of Lords, but after much discussion it was rejected by the House of Commons.1
This creation of Lords of Appeal who could sit and vote in the House as Peers for life was an innovation, not only in respect of the new dignity created, but of the method of the creation. It was indeed by Acts of Parliament that the representative Peers of Scotland and Ireland sat in the House, and it was by force of several Acts of Parliament that one and another spiritual Peer retained or lost his seat, and the Irish spiritual Peers were excluded in a body. Nevertheless, the composition of the House of Lords had always been held to depend either on the Royal Prerogative acting under strict limitations, or on the precedents, traditions, and inalienable rights belonging to the House itself or • See the references to Hansard in May's Const, Hist, vol. i. p. 299. Creation of Life Peerages.
to its members. Thus the creation by an Act of Parliament of Peers for life, capable of sitting and voting in the House, though primarily designated for special work, and limited at first to a number almost escaping observation, is, in fact, a decisive and recognised claim on the part of Parliament to remodel the whole composition of the House of Lords, with as much facility as the Legislature experiences when reforming the House of Commons. The reforms, both in the House of Commons and in the House of Lords, by which the present reign and the preceding one have been distinguished, point to a self-developing power in the Constitution, which up to 1832 had scarcely been suspected as existing except in time of revolution; and even at moments of the most self- conscious change—as when Parliament is engaged in altering or directing the succession to the Crown, in providing for a Regency, or, in desperate emergencies, in passing ex post facto laws, to fill an apparent vacuum in its own continuity—the most laboured efforts have been resorted to to maintain the outside form of identity and immortality in the Constitution, whilst the real process of change was disguised in a way often cumbrous and circuitous, if not puerile. It is not here the place for discussing what may be the political consequences of this decisive constitutional movement. A self-determining activity in respect of her political constitution has been disclosed in England later perhaps than in any equally civilised State; and the English House of Lords might naturally have been expected to be the last citadel which the necessity or appetite for change would reach. But that institution, by showing itself as plastic and modifiable as all parts of a living structure must be, has probably taken the surest path to prolong its own existence, and recommend itself to popular favour.
The occasion on which the House of Lords might seem to have heen weakened as an independent portion of the Legislature was the repeal of the Paper Duties in 1861. When the House of Lords decided to maintain a tax which the House of Commons had decided to have repealed, it joined issue, probably for the last time, on a question which hitherto had been less a matter of severe constitutional usage than of mutual courtesy between the Houses and of almost undisputed custom. It was imputed to the House of Lords that it thereby in effect initiated a Money Bill, counter to the fixed popular notion and habitual practice that all propositions for taxing the people should first be addressed to the popular representatives in the Commons by the Ministers of the Crown, the functions of the Upper House being limited to the simple acceptance or rejection of the proposed tax. When Mr. Gladstone, on May 6, 1861, announced that he intended to include all the chief financial propositions of the Budget in one Bill, he • vir'tually placed the Lords,' as the Rev. W. M. Molesworth says in his History,1 'in the position of being obliged to • accept or reject the whole financial scheme; and in fact 'deprived them not only of the power that they had 'exercised in the case of the paper duties, but of that 'power of examination and amendment of details which 'they had hitherto enjoyed without question or dispute.' The House divided on Mr. Gladstone's proposition, and his Bill was carried by a narrow majority of fifteen. The dispute between the Houses was not carried any
1 Hutory of England from the year 1830 to 1874, vol. iii. p. 181.' Repeal of the Paper Duties. 23
further. The victory was won in much the same way as the well-known constitutional victories of earlier times had been won by the two Houses as against the King. As in the older time the King could not obtain a supply without at least promising a redress of grievances,—the acknowledgment of the grievances and the validity of the grant being henceforth bound up in one indivisible whole,—so, by the mere form of the reference from the one House to the other, the Lords were rendered incapable of dissenting from the repeal of the Paper Duties without rendering themselves responsible for a standstill of government, consequent on their refusal to grant the Crown the revenues necessary for carrying it on. This device, by which the pressure of one part of the Legislature is brought to bear on the other, is obvious enough of its kind, but must be kept for use only on the rarest emergencies, at the risk of a deadlock occurring, and strong personal feelings concurring with the real demands of utility to relieve the situation in some other way than by the lasting subordination of that part on which pressure is brought to bear. A similar sort of pressure through the medium of Money Bills was brought to bear in France in 1877, when the President of the Republic persistently refused to co-operate,according to the recognised constitutional forms, with the other departments of the Legislature; and the same device is notoriously used with great frequency,—not to say abused,—in the English Colonics having Parliamentary institutions.
The existing practice by which the House of Lords liberates itself from the inconvenience of being unable to propose grants of money, or to include in its Bills measures involving grants of money, has been recently