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absent. There is no occasion in that House to keep in view the opinion of a distant constituency rather than that of a present audience, and, no representative responsibility being confessed, few Peers take part in the debates, or attend them, but those who have a personal inclination or urgent sense of duty to stimulate their assiduity. The general contrast between the lax or elastic procedure of the Lords' House and the strict regulations which hem in the action of members of the House of Commons has been lately touched upon with a light and humorous hand by Sir W. Vernon Harcourt, M.P., late Solicitor-General. In a speech delivered on the 22nd of February, 1879,1 he said :—
'The House of Lords enjoyed many privileges not 'possessed by the House of Commons, but on the other 'hand were deprived of many pleasures which the 'Lower House greatly appreciated. The Lords voted 'no supplies, and were sensible of no grievances. They 'had not the exhilarating amusement of discussing the 'details of the estimates, but then they had very great 'advantages. Their House was not liable to be counted 'out. They had no quorum, except that particular 'number which by the common law was sufficient to 'constitute a riot. They did not suffer from perpetual 'and vexatious motions for adjournment, for he had 'observed that there was generally a motion for adjourn'ment made at the interesting hour of half-past seven, 'which was always received with universal and cheerful 'acceptance. The House of Commons had recently had 'some difficulty on the subject of Standing Orders. He 'did not know whether the House of Lords had any
1 The Times, Monday, Feb. 24, 1879.
The Lord Chancellor as Speaker. i o i
'Standing Orders at all, because he had remarked that 'its members were able to speak upon any subject, on 'any occasion, without restraint or regard to relevancy. 'Among other privileges the House of Lords had a 'Speaker who was always speaking, and in exchange 'for that he had no authority.1 . . . Further, the
1 The question as to whether the Lord Chancellor is ex-officio Speaker of the House of Lords was made the subject of some public discussion in the latter part of the year 1878. In a letter to The Timet of August 3rd, 1878, the Duke of St. Albans expressed some surprise at finding the Lord Chancellor reported as claiming to be the Speaker of the House of Lords. He said : ' The theory that the 1 woolsack is outside the House makes it impossible, and the fact 'that the Lord Chancellor is a member of the Ministry of the day 'makes it undesirable for the independence of the House, that it 'should be so.' At a Mansion House banquet on the same day, Lord Chancellor Cairns responded to this by saying: ' I observe to'day that one of the highest in rank in the assembly of which he is a 'member has made the startling discovery that the Lord Chancellor 'isnot the Speaker of the House of Lords. At the same time I must 'venture to think that it is because I am the Speaker of the House 'of Lords that you have done me the honour of requiring me to 'respond to this toast'—(the health of the House of Lords.) The whole antiquarian and constitutional reasoning applicable to the point was summed up in a learned letter of Mr. Locock Webb's, addressed to The Timet, on August 6, 1878. He points out that the right of the Lord Chancellor in virtue of his office to be Prolocutor or Speaker of the House of Lords has, probably from remote times, but certainly for a period extending over upwards of two centuries, been recognised not only by custom but by standing orders of the House of Lords and by Acts of Parliament. In the recent Acts of the 14th and 15th Vict. cap. 83, and the 15th and 16th Vict. cap. 87, the Lord Chancellor is expressly recognised as 8peaker of the Lords. There is no doubt, however, that the woolsack, which is the seat of the presiding Judge of the assembly in its judicial capacity, is not a seat in the House of Lords, and has occasionally been occupied by one who was a mere judicial functionary and a Commoner, and had no right to sit as a Peer of Parliament. If there is no Lord Chancellor, the Lord Keeper performs the functions of Speaker, and by a standing order of the House of Lords 'House of Lords knew no dissolution, except that which 'the Black Rod of Nature allowed; they answered no 'questions; they gave no pledges; they had no fear of 'Liberal Four Hundreds before their eyes.' Later on in the evening the Marquis of Hartington observed that in the House of Lords 'the great science of obstruc'tion is entirely unknown.' He thought Sir William Harcourt 'was in error in saying that they had no 'Standing Orders at all. He believed they had Stand'ing Orders, and they had on more than one occasion 'considered them with a view to alteration; but he 'understood that their object in these alterations— 'strange as it might seem to members of the House 'of Commons—had been to encourage members of the 'House to speak, rather than to restrict the opportuni'ties of their doing so.'
(No. 3, 19th June, 1660) it is the duty of the Lord Chancellor or Lord Keeper 'ordinarily to attend the Lords' House of Parliament.' It has been the custom to appoint several deputy Speakers, generally three, with authority to act in the Lord Chancellor's absence according to the prescribed order of precedence. The Lord Chancellor votes as a Peer, but has no second or casting vote as Speaker; and a person exercising the office of Lord Chancellor in the Lord Chancellor's absence, if he is not a Peer, does not vote.
The whole subject is one of something more than mere legal curiosity, as it affects in theory, and might affect in practice, the relations of the Government of the day, in the person of their chosen representative, to the House of Lords; and it might hereafter happen, in case of controversy as to the functions of the Lord Chancellor in directing or controlling the course of an animated debate, that the question whether be was in fact Speaker of the House, and carried with him all the recognised attributes of that office, would become one of the utmost relevancy.
Constitutional Advance in Home Legislation. 103
Section HI.—Home Legislation.
There has been no previous period in the history of the country which has been so prolific in legislation as that intervening between the close of the reign of George IV. and the present time. Looked at superficially, the mass of the legislation which has taken place might seem to be nothing more or better than a series of tentative and often spasmodic efforts to seize the first opportunity which social circumstances afforded of grappling with such of the ills that flesh is heir to as can be touched by legislation of some sort or other. Nevertheless, while making every allowance for the elements of accident, ignorance, caprice, selfishness, and vicious theorising which may have discredited recent legislation, it is true that an attentive observer can find stamped upon the statutes of the present and of the previous reign certain broad marks of political principle, which, when looked at as a whole, must be recognised as signs of constitutional movement. There are certain distinct directions in which legislation has of late been advancing, and the march in each of these directions implies a change in the functions of Parliament and in the limits of legislation, and thereby denotes a modification, or perhaps only an oscillation, of the Constitution. These directions are indicated in, 1, the removal of religious disqualifications, 2, the adjustment of chartered and endowed institutions to modern necessities, 3, the laying down of fresh principles for government interference and abstinence from interference with industry, commerce, and social economy generally, and, 4, a fresh demarcation of the relations between central and local government.
1. When it is remembered that in the year 1828 no Roman Catholic, Jew, or dissenter from the communion of the Established Church of England could be legally elected to any office relating to the government of any city or corporation, or hold any civil or military office (including the most insignificant, such as that of an exciseman, a tide-waiter, or even a pedlar); that by the form of the oath exacted from members of the Legislature all Roman Catholics, and important classes of dissenters, were excluded from Parliament, and that Jews had become excluded for the first time by the operation of the very measure which liberated other dissenters; and that between the year 1828, the date of the repeal of the Test and Corporation Acts, and 1866, the date of the Act substituting an oath not objectionable to Jews, every one of these disqualifications was swept away; there can be no doubt of a principle being asserted which is emphatically new. This principle is sometimes described as that of religious equality, and at other times as that of not allowing any disabilities, civil or political, based only on religious grounds; but so long as there is in England a Church by law established, it may be doubted whether the principle either of religious equality or of the repudiation of religious disabilities is as yet confessedly admitted in the Constitution. By the operation of the Act of Settlement, the reigning Sovereign must be one who is in communion with the Church of England. Archbishops and Bishops of the Church of England, and the ministers of no other religious organisation, form an essential element in the composition of the House of Lords. Clergymen of the