« ПредыдущаяПродолжить »
The Nation the Arbiter of Change. 17
It is one of the main problems of modern politics to facilitate on the one hand, and to obstruct on the other, changes in the Constitution. M. de Tocqueville and other well-known writers have laboured to point out the ultimate inefficacy of all artificial barriers against the strong and steady torrent of the popular will. The various obstructions to this will which already exist in England, or which are ingeniously contrived from time to time, serve a most useful purpose, partly by ensuring delay, partly by handing on the existing framework of the Constitution to a time when general education shall be more widely diffused, and political experience increased. For the present purpose it is sufficient to enforce the principle that it is to the two Houses of Parliament that immediate reference must be made when changes in the Constitution are believed to be imminent, or are held to be desirable or the contrary; but that, on the other hand, Parliament is not omnipotent, and that if the Constitution is changed ever so little in any direction, it is the people themselves who, by their activity or neglect, have changed it. Securus judi-cat orbis terra/rum.
How far, during the period now under discussion, Parliament has, with general public assent, been in fact overstepping the limits by which its alleged omnipotence was formerly restricted, will be necessarily brought to light as the general characteristics of recent legislation are passed under review. It will then be seen how far there are any limits to legislation at a given time; how far these limits are moveable; and by what process they are moved.
Assuming then that the primary source of the move
ments of the Constitution throughout any definite period must be sought in the structure, relations, and action of the two Houses of Parliament, it is important to compare the condition of the Houses in these respects as it was some fifty years ago and as it is at present.
It was not, perhaps, till about the commencement of the present reign—that is, in 1837—that the true consequences of the Reform Act of 1832 began to be fully apprehended. Mr. Walter Bagehot, in the Introduction to the latest edition of his memorable treatise,1 has pointed out what the aristocracy really lost by the abolition of nomination boroughs and the enfranchisement of populous towns. The central force of the Constitution in fact swayed over from the titled nobility,— who had become, by a series of social changes, paramount in both Houses,—not to the general body of the people, but to the lately-enriched middle-classes, who must thenceforth preponderate in the Lower House, and thereby carry with them, for reasons which Mr. Bagehot explains at length, the Upper House. It may here be said, parenthetically, that it would be a misleading mode of treatment to discourse (as is necessarily done in text-books) on either House apart. As in the earliest days of the English Constitution, so now, the two Assemblies are emphatically one House of Legislature. Fully to vindicate the fact of this unity and the mode of its expression has required, and may yet require, many a tentative struggle and experiment conducted by the Assemblies in their mutual relations. It is, of course, easy to ignore this progressive identification by speaking carelessly of the weakness and worthlessness of the one body and the tyrannical force of the other; or of the > Englith Camtttution, Introduction to 2nd Edition, pp. xxiv. xzr.
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 of 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 1 See the references to Hansard in May's Const. Hist. vol. i. p. 299.
Creation of Life Peerages. 21
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