Part 23

The question may be considered in two ways. First, Has the Crown the power to make such a creation? Secondly, Supposing it to possess the power, is such an exercise of it constitutional? With regard to the first question, it is, even on the showing of its supporters, an extremely doubtful one. “Rectissime illud receptum est, ut leges non solum suffragio legislatoris sed etiam tacito consensu omnium per desuetudinem abrogantur,” is a maxim embodied in the works of those masters of jurisprudence, to whom alone, to use the words of one of their most illustrious scholars, reason seems to have unveiled her mysteries. Nor is the principle unknown to our municipal jurisprudence. It was a law that every member of a city or borough should be chosen from among the inhabitants of the place which he was selected to represent. This law was abrogated by desuetude only. Many similar instances might probably be found by any one who would examine our ancient statutes. That custom is the best interpreter of written law is an axiom of jurisprudence; and how much more forcibly does the argument apply to unwritten law, to an obsolete prerogative raked from the dust and cobwebs of feudal barbarity, and dragged forth “in luce asiæ” into the meridian blaze of civilisation, to act upon the destinies of living men. The revival of obsolete prerogatives was one great and just complaint against the Government of Charles I. Lord Clarendon, his ablest advocate, bewails the injudicious and violent measures that unhappy monarch took in reviving the Forest Laws, and obliging gentlemen of certain incomes to compound for knighthood. Had he attempted to strip the peerage of its hereditary character, the outcry would have been louder and more reasonable; for of course our argument applies only to the case of conferring, by a peerage for life, a voice or seat in Parliament. “The common law of England,” says a great lawyer and a great thinker, “is nothing else but the common custom of the realm, and a custom which has obtained the force of a law is always said to be ‘Jus non scriptum.’ ... Being only matter of fact, and consisting in use and practice, it can be RECORDED AND REGISTERED NOWHERE BUT IN THE MEMORY OF THE PEOPLE.” Again the same eloquent writer says:—“A custom takes beginning, and grows to perfection in this manner: When a reasonable act once done is found to be good and beneficial to the people, and agreeable to their nature and disposition, then do they use and practise it again and again—and so, by often iteration and multiplication of the act it becomes a custom; and being continued without interruption time out of mind, it obtains the force of a law.” This is exactly the basis on which the “rerum perpetuo similiter judicatarum auctoritas” must rest, and exactly the reverse of that prerogative, by the sudden exertion of which, after a lapse of four centuries, it is proposed to give to any minister the power of swamping the House of Peers. What would be said now if any one were to attempt to put on “the statute of uses” the meaning which those by whom it was enacted undoubtedly meant that it should have, and which was frustrated by the narrow decision, as Mr Hallam calls it, of the Judges? If any man were insane enough to attempt such an argument, would he not be silenced at once, and forfeit, for the remainder of his life, all claim to the character of a rational being? Would he not be told that, after the current of precedent had run for centuries in one direction, after all the Estates in England had been settled and disposed of on the faith of those precedents, it was mere mischievous pedantry to question the validity of the original interpretation? Now, the last time when the Crown gave the right of voting in the House of Lords to any one who would not transmit the same right to his children, to any one whose blood was not ennobled, was long before the period when the statute of uses passed into a law. The four or five cases cited to justify such a stretch of authority are taken from times when the boundaries of the constitution fluctuated incessantly,—when sometimes the king oppressed the barons, and sometimes the barons destroyed the king,—when one encroached upon the other, as he or they were uppermost in a series of victories and defeats equally oppressive to the people, and equally inconsistent with all regular government,—when the soil of England was drenched with the blood of the yeoman, and the axe of the executioner was red with the blood of the noble,—“in stormy and tempestuous times,” to use the language of a great and upright magistrate, Chief-Justice Crew, “when the government was unsettled, and the kingdom in competition,”—when Bohun, and Mowbray, and Mortimer passed away—nay, when Plantagenet himself became a shadow and a dream. Will any man say that this was a period when our constitution was understood? that this is the time when its parts were adjusted to each other?—when, though the noble outline of it might be discernible, its lineaments were complete? At that time the Crown granted or withheld writs to boroughs at its pleasure, and so moulded the House of Commons. It summoned a man to take his seat in one Parliament and not in another, and so modelled the House of Lords. But even of these cases, drawn from those times of turbulence and confusion, while the elements of our constitution were at war with each other, predominating or subsiding with every capricious turn of fortune, one only has any bearing on the question. For, as has been said before, the question is not one of compliment or precedence; it does not relate to the power of the sovereign to gratify a morbid and spurious appetite for vulgar notoriety by a mongrel title, or to reward vice by flattering the abject vanity of some frivolous prostitute; it relates to his power of giving a share in the legislation of England without that guarantee for independence which, during four hundred years, has been thought essential to its exercise. Now, in the case of Sir John Cornewall, who was created Lord Fauchope for life, the prerogative was exercised with the assent of the House of Lords. There remains, therefore, the solitary case of Lord Berners, in the reign of Henry VI.—a case that is extremely doubtful—to justify this exercise of the prerogative in the year of grace 1856. If, then, law is to be controlled or modified by usage—if the “lex et consuetudo Parliamenti” are not to be put aside—it must be admitted that, even in the absence of any negative argument, the right of the Crown is extremely questionable, in spite of the dictum of Lord Coke, and of the writers by whom he has been copied. Lord Coke, it may be remembered, has fallen into acknowledged errors. He was wrong in asserting that a justice of peace had no power of holding a person accused of felony to bail. He was wrong in asserting that common law ought to prevail against the express words of an Act of Parliament. But there _are_ strong negative arguments. In Lord Purbeck’s case, which was argued before the celebrated Lord Shaftesbury, who was certainly not ignorant of the principles of the constitution, it was stated by the Attorney-general that the king could create a peer for life. This doctrine was at once questioned by Lord Shaftesbury; and in that opinion Lord Nottingham, the creator of equity, though differing with him as to the case immediately before him, acquiesced.

It is difficult for any one who weighs these arguments to resist the conclusion at which Lord Lyndhurst and Lord Campbell, Lord St Leonard’s and Lord Brougham—laying by on an occasion of such vast importance all party differences and political hostility—have arrived, that an instrument made four hundred years ago, before the constitution had been made, before the disposition, occasions, circumstances, the moral, civil, and social habits to which that noble fabric owes its existence had disclosed themselves, cannot in the eye of reason justify a violent change in the long-established, the peculiar, and the distinguishing character of the House of Lords.

There is (_Parl. Hist._, vol. i. page 890) a remarkable case which has never been cited, we believe, and which shows that the House of Lords exercised the right of excluding an unworthy member from its deliberations. It is the case of Lord De la Ware in the reign of Edward VI. “He had attempted to poison his uncle, and was by an _order of Parliament_ excluded from any estate or honour that might come to him after his uncle’s death.” The precedent in favour of the Crown dates from a period far more remote than this. If the Crown quote the fifteenth century, why may not the House of Lords quote the sixteenth? And it should be remarked that this is a prerogative which there must have been constant motives for using, and the non-exertion of which, therefore, furnishes a very cogent argument against its existence. Harrington, in his _Oceana_, particularly censures Richard II. under the name of Adoxus, for creating peers “who had hands to dip in the royal purse, but no shoulders to support the throne.” We know what became of that prince and his newly-made Caryatides. Our peers are not to perform the functions Virgil assigned to our fathers—

“Purpurea intexti tollant aulæa Britanni.”

They are not to be courtiers, or geologists, or engineers, or builders of crystal palaces, or presidents of councils of art, or even judges, but _legislators_, mediators between the Crown and the people—an office that may dignify the greatest abilities, and satisfy the most generous ambition.

We come now to the second branch of the question, how far such a measure can be considered constitutional,—meaning by that, how far it is in conformity with the spirit and genius of that form of government to which we owe, during so many ages, and during so many vicissitudes, the tranquil possession of political freedom. Certainly the time chosen to cut one of the strands of the cable of our anchor is a singular one. Freedom, with the exception of the countries governed by the King of Sardinia, has been overthrown or undermined in every part of the continent of Europe. Nobody can doubt that a main cause to which the present condition of France is to be attributed, is the want of a body of hereditary legislators; the want, that is, of a powerful aristocracy,—in other words, of a House of Lords. Nobody can doubt that the forlorn troop of servile beggars distinguished throughout Germany by the titles of Earl, and Baron, and Freihern, is a main reason why all attempts to establish constitutional freedom in that country have only served to illustrate the most ludicrous ignorance of human affairs, coupled with the most abject tergiversation, and to drag to light projects, compared with which the principles by which the Caffres are governed may be considered luminous, and the whims of the politicians of Laputa may pass for reasonable. We object to any scheme for Germanising England. We should be sorry to see the influence of the Court, where we now see other hopes and objects. We should be sorry to see the varied elements of our social state crushed into one undistinguished mass of servitude. Our universities have been tampered with; the next attempt is on the House of Lords. It is the fashion to speak lightly of representative government. “A weak man doth not well consider this, and a fool doth not understand it.” The disgust and contempt felt throughout France for the corruption and time-serving of the mongrel House of Peers, consisting of misplaced men of letters, venal courtiers, affected artists, hireling writers in the daily press, shallow coxcombs, and a few besides of illustrious names—the last scattered like the nails in a wall over a wide blank surface—account for the sympathy with which all reasonable men hailed its annihilation. Such an institution as our House of Lords may be destroyed, but cannot be created; and with these examples staring us in the face, and loudly forbidding the attempt, in defiance of reason and of experience, in contradiction to the sound feelings of the nation, an old prerogative that has, “like unscoured armour, hung by the wall so long,” that the announcement of its existence may furnish a question perhaps for the amusement of antiquaries of much leisure and little thought, but which, to all real purposes, has become as obsolete as writing pure English—is made the instrument of changing, at the will of the Sovereign, a fundamental part of our constitution. This is done, too, during a war, when great political alterations are usually suspended, as if it were the merest trifle, not worth attention or debate, amounting to nothing more than, and quite as much of course as, the appointment of some commission to recommend the maintenance of all the wretched chicane by which the course of justice in England has been so long impeded. Some knowledge of the constitution which he proposes so presumptuously to violate, some little acquaintance with the great writers who have dwelt upon its excellences, and held them up to the gratitude of posterity, would be a useful ingredient in the composition of a Chancellor. Some knowledge of history (we mean of course English history) might, on the eve of so perilous an undertaking, be found serviceable to the lawyer who (whatever be the mysterious influence under which he acts, and no doubt in perfect unconsciousness) sets himself to work to pull down in cold blood, and with the blandest countenance, one of the safeguards of our liberties. For, with deference to such authority, we look upon the privileges of the Peers as conferred upon them for the public good. To suppose them given or kept for any other purpose, would be a narrow and unworthy view. If they are inconsistent with that object, they cannot be swept away too soon. If they contribute to it, they cannot be too religiously preserved. For four hundred years, during which the parts of our balanced government have been made to harmonise with and give mutual aid to each other, the deliberate opinion of ages and generations in this country has been in favour of their existence. It is a fair inference that all these writers, historians, and statesmen, have not been wholly destitute of political sagacity, or in a conspiracy to promote abuse. It is a fair inference that a measure which Lord Grey repudiated, which Mr Pitt would not hear of, which Mr Fox would have scouted with every expression of scorn that his vehement nature could have found in his copious vocabulary, is a rash and unconstitutional experiment. But we know what the class (unfortunately it is a numerous one) is who “rush in where angels fear to tread;” we know, too, that the gloom which enveloped these great statesmen has been dissipated by the light which has flashed with such marvellous lustre upon my Lord Cranworth. It is hard upon this land that admitted mediocrity should be no safeguard against reckless extravagance. If, in the days when the wild hurricane of Reform was sweeping over us, some man of an irregular but powerful intellect had, in a moment of irritation and disappointment, suggested such a measure, we should have consoled ourselves by reflecting that inundations atone for the mischief they inflict by the fertility they occasion. We should have accepted the benefit, and been on our guard against the evil. But when a grave commonplace sober gentleman, decent to a fault, by no means of an ardent or romantic disposition, misled by no passions, carried astray by no impetuosity, not intoxicated by learning, carefully and effectually guarded by provident nature against the dangers to which genius is exposed when such a person reverses the famous line, and in a paroxysm of impotence, raging without strength, and overflowing without fulness—“precipitately dull” and dispassionately mischievous—mimics the freaks and caprices for which inspiration only can atone, Heraclitus might laugh at his distempered activity, and Democritus weep for the fate of the country in which he legislates. The line—

“Ut lethargicus hic, cum fit pugil et medicum urget,”

describes him. There is no hope, says an acute writer, for the lover of an ugly woman. There is as little for those who suffer by the absurdities of a commonplace man. “Whenever you commit an error, Mr Foresight,” says the wit in _Love for Love_, “you do it with a great deal of prudence and discretion, and consideration.”

It should be recollected that there are many prerogatives of the Crown which, if exercised injudiciously—that is, unconstitutionally—would soon become intolerable. The Crown has the undoubted power of making peace or war; but if Ministers were to agree that York should be occupied by a Russian garrison for ten years, or that we should pay a tribute to Russia for that time, would it be any argument in favour of such clauses that the Crown had only exercised its undoubted prerogative? The Crown has the power of pardoning offenders; would that justify the pardon of every offender as soon as he is convicted? Many persons think that the Crown has never lost the power which it once most unquestionably possessed, of raising the denomination of the coin; is there any maniac, even among the worshippers of Ruskin, who would counsel such an experiment? The prerogatives of the Crown, even when most unquestionable, must be exercised in conformity with the spirit of the constitution. It is the peculiar character of our constitution that it contains within it the three great principles of monarchy, aristocracy, and democracy, blended together so intimately, yet perhaps so inexplicably, that the Crown has no strength, except in connection with the aristocracy and the people: the aristocracy is nothing when opposed to the Crown and the people; and the people have little power, if abandoned by the aristocracy and the Crown. Fortunate indeed have been the circumstances which enabled our fathers to complete this mysterious union. The strength of our system is its harmony. Take away the beauty of its proportions, and its energies are at an end. That amazing system, the work not of giddy choice and tumultuous violence, but of the “author of authors,” Time, with enough military vigour for war, with enough civil influence to make military power in time of peace impracticable, with the checks apparently so hostile, in reality so much in unison, as to make it the most perfect moral machine that ever was contrived to perpetuate freedom among a people—would be violated and destroyed by any such organic innovation.

What promises can exceed its performance? And it is this which, for the sake of putting a special pleader among the Law Lords, or of satisfying the vulgar ambition of a few discontented men, ignorant of their proper sphere, we are about to put in jeopardy. Does any man think that the power of the Crown is too little in the House of Lords? Is not the reverse notoriously the truth? Is not the influence of the Crown over the Bishops, who are not Peers but Lords of Parliament, matter of just complaint? Would not the power of the Crown be increased by creating Peers for life? Would it not, especially in a country where a vulgar appetite for technical rank is but too conspicuous, increase the number of those who would gain by subserviency to the Crown in that assembly? If you suddenly shift the ballast, your vessel will soon be under water—

“Quamvis pontica pinus Sylvæ, filia nobilis Jactes et genus et nomen inutile.”

On the other hand, if the creation of life-peers would give too much influence to the Crown, beyond all doubt it would give a most invidious distinction to those already ennobled families, among whom the son of the mechanic may now hope to take his place. It would tend to make them a separate caste, cut off (we speak of what must happen in less than a century) from the sympathies of their fellow-citizens. Such a state of things could not long continue.

It is but too deeply rooted in the nature of man to press social distinctions too far, and insist on them too much. And could anything be devised to swell the pride of a hereditary Peer more effectually than the sight of upstart counterfeits, bearing the same title with himself, but distinguished, nevertheless, by an everlasting badge of inferiority? The classes and professions from which such peers were taken would share in their degradation, and in the hostility which it would inspire—

“Touch them with several fortunes, The greater scorns the lesser.... Raise me this beggar, and deny’t that lord— The senator shall bear _contempt hereditary_.”