Miscellaneous Writings and Speeches — Volume 4

The noble lord, the Member for Kent does not, it is true, propose so extensive and important a change as that which the authors of the Act of Settlement wished to make. But the tendency of this bill is, beyond all doubt, to make this House less capable than it once was, and less capable than the other House now is, of discharging some of the most important duties of a legislative assembly.

Of the duties of a legislative assembly, the noble lord, and some of those gentlemen who support his bill, seem to me to have formed a very imperfect notion. They argue as if the only business of the House of Commons was to turn one set of men out of place, and to bring another set into place; as if a judge could find no employment here but factious wrangling. Sir, it is not so. There are extensive and peaceful provinces of parliamentary business far removed from the fields of battle where hostile parties encounter each other. A great jurist, seated among us, might, without taking any prominent part in the strife between the Ministry and the Opposition, render to his country most valuable service, and earn for himself an imperishable name. Nor was there ever a time when the assistance of such a jurist was more needed, or was more likely to be justly appreciated, than at present. No observant man can fail to perceive that there is in the public mind a general, a growing, an earnest, and at the same time, I must say, a most sober and reasonable desire for extensive law reform. I hope and believe that, for some time to come, no year will pass without progress in law reform; and I hold that of all law reformers the best is a learned, upright, and large-minded judge. At such a time it is that we are called upon to shut the door of this House against the last great judicial functionary to whom the unwise legislation of former parliaments has left it open. In the meantime the other House is open to him. It is open to all the other judges who are not suffered to sit here. It is open to the Judge of the Admiralty Court, whom the noble lord, twelve or thirteen years ago, prevailed on us, in an unlucky hour, to exclude. In the other House is the Lord Chancellor, and several retired Chancellors, a Lord Chief Justice, in several retired Chief Justices. The Queen may place there to-morrow the Chief Baron, the two Lords Justices, the three Vice Chancellors, the very Master of the Rolls about whom we are debating: and we, as if we were not already too weak for the discharge of our functions, are trying to weaken ourselves still more. I harbour no unfriendly feeling towards the Lords. I anticipate no conflict with them. But it is not fit that we should be unable to bear an equal part with them in the great work of improving and digesting the law. It is not fit that we should be under the necessity of placing implicit confidence in their superior wisdom, and of registering without amendment, any bill which they may send us. To that humiliating situation we are, I grieve to say, fast approaching. I was much struck by a circumstance which occurred a few days ago. I heard the honourable Member for Montrose, who, by the by, is one of the supporters of this bill, urge the House to pass the Combination Bill, for a most extraordinary reason. "We really," he said, "cannot tell how the law about combinations of workmen at present stands; and, not knowing how the law at present stands, we are quite incompetent to decide whether it ought to be altered. Let us send the bill up to the Lords. They understand these things. We do not. There are Chancellors, and ex-Chancellors, and Judges among them. No doubt they will do what is proper; and I shall acquiesce in their decision." Why, Sir, did ever any legislative assembly abdicate its functions in so humiliating a manner? Is it not strange that a gentleman, distinguished by his love of popular institutions, and by the jealousy with which he regards the aristocracy, should gravely propose that, on a subject which interests and excites hundreds of thousands of our constituents, we should declare ourselves incompetent to form an opinion, and beg the Lords to tell us what we ought to do? And is it not stranger still that, while he admits the incompetence of the House to discharge some of its most important functions, and while he attributes that incompetence to the want of judicial assistance, he should yet wish to shut out of the House the only high judicial functionary who is now permitted to come into it?

But, says the honourable Member for Montrose, the Master of the Rolls has duties to perform which, if properly performed, will leave him no leisure for attendance in this House: it is important that there should be a division of labour: no man can do two things well; and, if we suffer a judge to be a member of Parliament, we shall have both a bad member of Parliament and a bad judge.

Now, Sir, if this argument proves anything, it proves that the Master of the Rolls, and indeed all the other judges, ought to be excluded from the House of Lords as well as from the House of Commons. But I deny that the argument is of any weight. The division of labour has its disadvantages as well as its advantages. In operations merely mechanical you can hardly carry the subdivision too far; but you may very easily carry it too far in operations which require the exercise of high intellectual powers. It is quite true, as Adam Smith tells us, that a pin will be best made when one man does nothing but cut the wire, when another does nothing but mould the head, when a third does nothing but sharpen the point. But it is not true that Michael Angelo would have been a greater painter if he had not been a sculptor: it is not true that Newton would have been a greater experimental philosopher if he had not been a geometrician; and it is not true that a man will be a worse lawgiver because he is a great judge. I believe that there is as close a connection between the functions of the judge and the functions of the lawgiver as between anatomy and surgery. Would it not be the height of absurdity to lay down the rule that nobody who dissected the dead should be allowed to operate on the living? The effect of such a division of labour would be that you would have nothing but bungling surgery; and the effect of the division of labour which the honourable Member for Montrose recommends will be that we shall have plenty of bungling legislation. Who can be so well qualified to make laws and to mend laws as a man whose business is to interpret laws and to administer laws? As to this point I have great pleasure in citing an authority to which the honourable Member for Montrose will, I know, be disposed to pay the greatest deference; the authority of Mr Bentham. Of Mr Bentham's moral and political speculations, I entertain, I must own, a very mean opinion: but I hold him in high esteem as a jurist. Among all his writings there is none which I value more than the treatise on Judicial Organization. In that excellent work he discusses the question whether a person who holds a judicial office ought to be permitted to hold with it any other office. Mr Bentham argues strongly and convincingly against pluralities; but he admits that there is one exception to the general rule. A judge, he says, ought to be allowed to sit in the legislature as a representative of the people; for the best school for a legislator is the judicial bench; and the supply of legislative skill is in all societies so scanty that none of it can be spared.

My honourable friend, the Member for Surrey, has completely refuted another argument to which the noble lord, the Member for Kent, appears to attach considerable importance. The noble lord conceives that no person can enter this House without stooping to practice arts which would ill become the gravity of the judicial character. He spoke particularly of what he called the jollifications usual at elections. Undoubtedly the festivities at elections are sometimes disgraced by intemperance, and sometimes by buffoonery; and I wish from the bottom of my heart that intemperance and buffoonery were the worst means to which men, reputed upright and honourable in private life, have resorted in order to obtain seats in the legislature. I should, indeed, be sorry if any Master of the Rolls should court the favour of the populace by playing the mounttebank on the hustings or on tavern tables. Still more sorry should I be if any Master of the Rolls were to disgrace himself and his office by employing the ministry of the Frails and the Flewkers, by sending vile emissaries with false names, false addresses, and bags of sovereigns, to buy the votes of the poor. No doubt a Master of the Rolls ought to be free, not only from guilt, but from suspicion. I have not hitherto mentioned the present Master of the Rolls. I have not mentioned him because, in my opinion, this question ought to be decided by general and not by personal considerations. I cannot, however, refrain from saying, with a confidence which springs from long and intimate acquaintance, that my valued friend, Sir John Romilly, will never again sit in this House unless he can come in by means very different from those by which he was turned out. But, Sir, are we prepared to say that no person can become a representative of the English people except by some sacrifice of integrity, or at least of personal dignity? If it be so, we had indeed better think of setting our House in order. If it be so, the prospects of our country are dark indeed. How can England retain her place among the nations, if the assembly to which all her dearest interests are confided, the assembly which can, by a single vote, transfer the management of her affairs to new hands, and give a new direction to her whole policy, foreign and domestic, financial, commercial, and colonial, is closed against every man who has rigid principles and a fine sense of decorum? But it is not so. Did that great judge, Sir William Scott, lower his character by entering this House as Member for the University of Oxford? Did Sir John Copley lower his character by entering this House as Member for the University of Cambridge? But the universities, you say, are constituent bodies of a very peculiar kind. Be it so. Then, by your own admission, there are a few seats in this House which eminent judges have filled and may fill without any unseemly condescension. But it would be most unjust, and in me, especially, most ungrateful, to compliment the universities at the expense of other constituent bodies. I am one of many members who know by experience that a generosity and a delicacy of sentiment which would do honour to any seat of learning may be found among the ten pound householders of our great cities. And, Sir, as to the counties, need we look further than to your chair? It is of as much importance that you should punctiliously preserve your dignity as that the Master of the Rolls should punctiliously preserve his dignity. If you had, at the last election, done anything inconsistent with the integrity, with the gravity, with the suavity of temper which so eminently qualify you to preside over our deliberations, your public usefulness would have been seriously diminished. But the great county which does itself honour by sending you to the House required from you nothing unbecoming your character, and would have felt itself degraded by your degradation. And what reason is there to doubt that other constituent bodies would act as justly and considerately towards a judge distinguished by uprightness and ability as Hampshire has acted towards you?

One very futile argument only remains to be noticed. It is said that we ought to be consistent; and that, having turned the Judge of the Admiralty out of the House, we ought to send the Master of the Rolls after him. I admit, Sir, that our system is at present very anomalous. But it is better that a system should be anomalous than that it should be uniformly and consistently bad. You have entered on a wrong course. My advice is first that you stop, and secondly that you retrace your steps. The time is not far distant when it will be necessary for us to revise the constitution of this House. On that occasion, it will be part of our duty to reconsider the rule which determines what public functionaries shall be admitted to sit here, and what public functionaries shall be excluded. That rule is, I must say, singularly absurd. It is this, that no person who holds any office created since the twenty-fifth of October, 1705, shall be a member of the House of Commons. Nothing can be more unreasonable or more inconvenient. In 1705, there were two Secretaries of State and two Under Secretaries. Consequently, to this day, only two Secretaries of State and two Under Secretaries can sit among us. Suppose that the Home Secretary and the Colonial Secretary are members of this House, and that the office of Foreign Secretary becomes vacant. In that case, no member of this House, whatever may be his qualifications, his fame in diplomacy, his knowledge of all the politics of the Courts of Europe, can be appointed. Her Majesty must give the Admiralty to the commoner who is, of all her subjects, fittest for the Foreign Office, and the seals of the Foreign Office to some peer who would perhaps be fitter for the Admiralty. Again, the Postmaster General cannot sit in this House. Yet why not? He always comes in and goes out with the Government: he is often a member of the Cabinet; and I believe that he is, of all public functionaries, the Chancellor of the Exchequer alone excepted, the one whom it would be most convenient to have here. I earnestly hope that, before long, this whole subject will be taken into serious consideration. As to the judges, the rule which I should wish to see laid down is very simple. I would admit into this House any judge whom the people might elect, unless there were some special reason against admitting him. There is a special reason against admitting any Irish or Scotch judge. Such a judge cannot attend this House without ceasing to attend his court. There is a special reason against admitting the Judges of the Queen's Bench and of the Common Pleas, and the Barons of the Exchequer. They are summoned to the House of Lords; and they sit there: their assistance is absolutely necessary to enable that House to discharge its functions as the highest court of appeal; and it would manifestly be both inconvenient and derogatory to our dignity that members of our body should be at the beck and call of the peers. I see no special reason for excluding the Master of the Rolls; and I would, therefore, leave our door open to him. I would open it to the Judge of the Admiralty, who has been most unwisely excluded. I would open it to other great judicial officers who are now excluded solely because their offices did not exist in 1705, particularly to the two Lords Justices, and the three Vice Chancellors. In this way, we should, I am convinced, greatly facilitate the important and arduous work of law reform; we would raise the character of this House: and I need not say that with the character of this House must rise or fall the estimation in which representative institutions are held throughout the world. But, whether the extensive changes which I have recommended shall be thought desirable or not, I trust that we shall reject the bill of the noble lord. I address myself to the Conservative members on your left hand; and I ask them whether they are prepared to alter, on grounds purely theoretical, a system which has lasted during twenty generations without producing the smallest practical evil. I turn to the Liberal members on this side; and I ask them whether they are prepared to lower the reputation and to impair the efficiency of that branch of the legislature which springs from the people. For myself, Sir, I hope that I am at once a Liberal and a Conservative politician; and, in both characters, I shall give a clear and conscientious vote in favour of the amendment moved by my honourable friend.