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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.
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 been 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 6rst 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 History of England from the year 1830 to 1874, vol. iii. p. 181.
Repeal of the Paper Duties.
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 Colonies 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 criticised from a different point of view by so competent an authority as Mr. Gladstone. The practice is, for the House of Lords to insert in the Bills which it sends down to the Commons all the clauses involving expenditure, but to have them printed in italics, as mere suggestions on which the Commons are invited to found an original proposal. Mr. Gladstone 1 comments upon this practice as follows: 'In addition to the activity of 'private, professional, and local greed, and the possible 'cowardice of ministers in resistance, it must be noted 'that the House of Lords has done very great mischief 'in this respect, by voting into Bills the establishment 'of officers and appointment of salaries, and sending these 'Bills to the Commons with all such portions printed in 'italics, a conventional expedient adopted in order to 'show that they are not presented as parts of the Bill, 'but only as indications of the view or wish of the House 'of Lords; in matters, however, in which they have as a 'body no more right or title, than the House of Commons 'has or had to send in italics, or by any subterfuge, to 'the Lords a direction as to the judgments to be given 'in appeals. Here, then, we have a real case in which a 'power of the Crown has been greatly and mischievously 'weakened.' In the passage just preceding, Mr. Gladstone had said that the prerogative of the Crown in virtue of which it takes the initiative in proposing grants of public money had been of late years seriously and increasingly infringed, to the great detriment of the nation. 'Local claims, and the interests of classes 'and individuals, are now relentlessly and constantly 'pressed from private and irresponsible quarters; and