Part 24

Much, no doubt, may be said about the dangers and evils of unworthy successors to great names. Taken separately, such arguments are powerful; taken with reference to a collective body, they are weak. The question is—on which side does the balance of good preponderate? Along with many evils, and great tendencies to abuse, there are many advantages in hereditary honour. A true natural aristocracy is an essential part of any large body rightly constituted. “It is formed out of a class of legitimate presumptions, which, taken as generalities, must be admitted for actual truths. To be bred in a place of estimation; to see nothing low or sordid from one’s infancy; to be taught to respect one’s self; to be habituated to the censorial inspection of the public eye; to look early to public opinion; to stand upon such elevated ground as to be enabled to take a large view of the widespread and infinitely diversified combinations of men and affairs in a large society; to have leisure to read, to reflect, to converse; to be enabled to draw the court and attention of the wise and learned wherever they are to be found; to be habituated in armies to command and obey; to be taught to despise danger in pursuit of honour and of duty; to be formed to the greater degree of vigilance, foresight, and circumspection in a state of things where no fault is committed with impunity, and the slightest mistakes draw on the most ruinous consequences; to be led to a guarded and regulated conduct from a sense that you are considered an instructor of your fellow-citizens in their highest concerns; to be employed as an administrator of law and justice, and to be thereby among the first benefactors, to mankind;”—such is Mr Burke’s argument in favour of a hereditary aristocracy. As a sole or even a predominating element, it degenerates into an insolent domination; as an ingredient, tempered, controlled, and subdued by others, it has, in our opinion, a dignified and refining influence. And here we may remark, that almost the sole barrier to despotic power in France for many years was the firmness and integrity of its parliaments, which were in fact, though not in name, an hereditary aristocracy. Let any one compare the proceedings of that body with those of Louis Philippe’s peers, and then say on which side the balance of good predominates. The cautious and traditional wisdom of those great bodies interposed often between the people and their oppressors. Machiavelli speaks of them with admiration and respect; and their functions were well expressed by a First President of the parliament of Provence, when he said to the king, whom he resisted—“Souffrez, sire, qu’ avec peine, haine, et envie nous défendions votre autorité.” One of the worst acts of a bad reign was to substitute for this great aristocracy, which, with all its faults, had done great services to its country—holding the mean “inter abruptam contumaciam et deforme obsequium” with singular judgment—a set of political adventurers, called the Parliament Maupeou, many of them the mere creatures of the court and Madame Dubarri, and nevertheless welcomed to their new office by the approbation of the shallow conceited writers of the day. The pretext was a better administration of justice—“Le préambule s’exprimait dans un langage que n’eussent pas désavoué les philosophes sur la nécessité de _réformer les abus dans l’administration de la justice_.” “Absit omen!” Then purity of justice was the pretext of a tyrant; now it is that of a few sottish and purblind democrats. The result in France is known to every one who has read Beaumarchais, who in his celebrated Mémoires branded the turpitude and gross corruption of this newly constituted body with ineffaceable infamy. Then France began to see the difference between the minions of a court and a hereditary assembly, between the d’Aguesseaus, and the Goezmans, who were in their place; and in spite of Voltaire, they agreed with Mabli, that the old parliament was better than the “Parlement Postiche.” To this fact we will add the prophetic remark of Montesquieu, “Le pouvoir intermédiaire subordonné le plus naturel est celui de la noblesse; elle entre en quelque façon dans l’essence de la monarchie, dont la maxime fondamentale est, Point de monarque, point de noblesse—point de noblesse, point de monarque—_mais on a un despote_!” Is there no danger that, if the House of Lords is lowered, the House of Commons may ruin itself by its own excessive power?

The question, however, now is, not whether you will establish a hereditary peerage, but whether you will take away from it its stability?—it is not, whether you will abolish the House of Lords, but whether you will run the risk of polluting it by time-servers? Have there been no times in our history when the exercise of such a prerogative as is now claimed for the Crown would have been most dangerous? If James II. had imagined that such authority belonged to him, can any man doubt that he would have filled the House of Lords, as he did the bench of justice, with his Roman Catholic dependants? Is there not reason to believe that, as each party predominates, it will flood the House of Lords with these creatures of a day, to confirm its own ascendancy? Would the minister who created at once twelve peers to ratify the Peace of Utrecht have been satisfied with so limited a number, if so convenient a method as has now been discovered had presented itself to him? If peerage for life had been created, or even if the Lords had been menaced with such a measure, the motion for taking the Address into consideration, on the 23d Nov. 1685, would never have been carried without a division; nor would the dignified and manly language held in that House have offered so striking a contrast to the pitiful and abject tone and demeanour of the subservient House of Commons. As it was, Lord Sunderland is reported to have said that, to carry the measures of the Court, he would make Lord Churchill’s troop of guards peers. But he recoiled, base as he was, from such an attempt; and are we to legislate on the conviction that we shall never again have a bad king and an unscrupulous ministry, and that the firmness and independence of the House of Lords can never again be of any service to the constitution? Can we foretell that there may not be other battles to be fought, and other victories to be won? The attempt to make the hereditary peers a caste by another Lord Sunderland, was baffled in the reign of George the First; we trust that an attempt, which must have the same effect if it succeeds, and which must, moreover, strengthen the influence of the Crown, among a body where it needs no strengthening, will not prosper in the reign of Queen Victoria. To change the relations of the several parts of the constitution to each other, is to make the lessons of history, purchased as they have been with the best blood of our fathers, unavailing. The character of the House of Lords is, that the honours of those who sit and vote in it are hereditary. It is so described by Whigs and Tories, by lawyers and historians. It is in consequence of that character that it has filled a wide space in history, and that it is supported by a thousand time-hallowed associations. Fill it with the nominees of a minister, it will no longer serve to interpose any obstacle to the inconsiderate legislation which an impetuous democracy is sometimes rash enough to insist upon. It may serve to gratify the vanity of women, or of men as little fitted as women to control the destinies of nations; it may provoke hostility by distinctions, invidious when they are manifestly useless; it may even register the edicts which it will be unable to dispute: but its genuine functions will be gone for ever; and if ever the time should come when its energies are required to serve either Crown or people, they will be of as little account as those of the French Chamber of Peers in the hour of trial, and of as little benefit to themselves and to their country.

Why, then, should we unhinge the state, ruin the House of Lords, and pursue confusion, to guard against an evil which, if it exists at all, may be encountered by a far more specific and appropriate remedy? Wise, indeed, should he be who should endeavour to recast a constitution which has defended us alike from the unjust aggression of power, and the capricious tyranny of the multitude. But if our rulers are weak, and our councils infatuated, in the words of an old writer, we can only pray that the Lord will enable us to suffer, what He by miracle only can prevent.

THE WENSLEYDALE CREATION.

At a time when the attention of the nation is almost exclusively directed to the colossal struggle in which Great Britain has taken so conspicuous a part—when the deepest anxiety is felt regarding the issue of the conferences at Paris, which must have the effect either of restoring peace to Europe, or of rendering the contest more desperate in its character than before—we were surely entitled to expect that no attempts would be made, at least by Her Majesty’s advisers, to alter or innovate any acknowledged part of the fundamental constitution of the realm. It is with great pain that we feel ourselves called upon to denounce such an attempt, which appears to us not the less dangerous because furtively made, and seemingly insignificant of its kind. All permanent innovations, all great changes and revolutions, may be traced to a very trifling source. The whole constitution of a country may be overthrown in consequence of some narrow departure from its fundamental rules—a departure which possibly may appear at the time too trivial to demand remonstrance, but which, being drawn into a precedent, may, in the course of years, be the means of producing the most serious and disastrous effects. The tree that could have withstood the blast of the wildest hurricane, will become rotten at the core, if the rain can penetrate to its bole, even through a miserable crevice. The dykes of Holland, which defy the winter storms, have, ere now, yielded to the mining of that stealthy engineer, the rat, and provinces have been inundated in consequence. And, therefore, it well becomes us to be jealous of any attempt, however trivial, or however specious—for plausible reasons can always be adduced on behalf of any kind of innovation—to alter the recognised principles of our constitution, or to introduce a totally new element into its framework.

We allude, of course, to the attempt which Her Majesty’s advisers have thought proper to make, at altering the hereditary constitution of the House of Lords, by the introduction of Life-Peers into that body. The question is now being tried in the case of Mr Baron Parke, who has been created Baron Wensleydale, without remainder to heirs; and it is impossible, looking to the attendant circumstances, to avoid the conclusion that this creation has been deliberately made, for the purpose of establishing a precedent for opening the doors of the highest deliberative assembly to a new order of nobles, who are not to have the privilege of transmitting their rank and titles to posterity. For, if the only object had been, as is alleged, to recruit the numbers of life Lords upon whom the task of hearing and deciding appeals from the inferior courts of the country must devolve, there was obviously no necessity, nor even reason in this instance, for departing from the usual conditions of the peerage. Lord Wensleydale (for so we are bound to call him, in virtue of his patent of nobility from the Queen) is a man of advanced years, and has no son. In all human probability, therefore, the title, even though it had been destined to heirs-male, as is the common form, would become extinct at his death. Want of fortune, as the means of sustaining, in the future time, the social position which a peer ought to occupy, has often been alleged, and with reason, as a sufficient obstacle in the way of the elevation of commoners, distinguished for their acquirements and genius, to the Peerage. It has been said, and with great truth, that the present and fleeting gain is more than counterbalanced by the future and permanent disadvantage. For the acquirements and genius of the man so elevated are but personal, and perish with him—the heirs remain as pauper peers, no ornament to their order, and may, for a seemingly inadequate consideration, be willing to surrender their independence, and use their legislative powers at the bidding of an unscrupulous minister. But, in the present case, where the chance of succession was so small, there could be little room for such an objection; perhaps there was none, for the fortune of Lord Wensleydale may be, for anything we know to the contrary, quite adequate to the maintenance of a peerage; therefore we must hold that this case was selected purposely to try the question. Indeed, supposing that Her Majesty’s advisers were justified in making the attempt to alter the constitution of the House of Lords by the introduction of Peers for life, they could hardly have selected a better instance. For, if it should be decided or declared that there is a limit to the prerogative of the Crown, and that the creation of a peer for life, like Lord Wensleydale, is simply a personal honour, but does not carry along with it the privilege of a seat in the House of Lords, all unseemly questions of precedency will be avoided. In that case it is not likely that the experiment will be renewed; for we may safely conclude that the object of Her Majesty’s advisers in issuing this singular patent was not to gratify Lord Wensleydale by the gift of a barren honour, but to make him a member of the House of Peers, entitled to speak and to vote; and thereby to establish a precedent for the future creation of a non-hereditary peerage.

Before entering into the questions of privilege and prerogative, it may be as well to consider the reasons founded on expediency which have been advanced in behalf of the creation of peerages for life. Such of her Majesty’s ministers as have spoken upon the subject have been exceedingly cautious and guarded in their language. None of them have ventured to assert an opinion that, for the future, it would be advisable to multiply this kind of peerages. Their arguments go little beyond this—that whereas the appellate jurisdiction of the House of Peers renders it necessary that at all times there should be among that body persons intimately acquainted with the law, and qualified to act as judges, it is for the advantage of the country that such creations should be not permanent but temporary, not hereditary but personal. In this there is not only some, but much plausibility. It is of the utmost importance to the country that the highest legal talent should be engaged for the last Court of Appeal; and we are not of the number of those who consider that a court of appeal might be dispensed with. We believe that the consciousness that there exists a tribunal which has the power of reversing or altering their judgments, has conduced more than anything else to stimulate the zeal, activity, and attention of the judges in the ordinary courts of law; and it would be a very hazardous experiment to give an irresponsible character to their decisions. We think also, and we make this admission freely, that some decided steps should be taken for the better regulation of the ultimate Court of Appeal. The House of Peers, as a body, has long since abdicated its right of sitting in judgment, except in some cases peculiar to the peerage. The judicial duties are now invariably devolved upon judicial Peers, that is to say, upon those who have either occupied or occupy the highest judicial offices; and although the form of putting the question to the House, after the opinion of the legal Peers has been delivered, is still observed, no instance of any attempt on the part of other peers to vote, has taken place for a long series of years. Thus the appellate jurisdiction of the House has been confided to a small and fluctuating committee, on whom attendance at the hearing of causes is not compulsory; and although hitherto, as we verily believe to be the case, the judgments have been such as to give general satisfaction, there is no security for the continuance of a sufficiently qualified number of adequate Judges. We think that some other arrangement for establishing and securing a permanent tribunal of appeals should be adopted; but we demur greatly to the plan now proposed of creating life-peerages for the purpose of keeping the jurisdiction within the House of Lords. Very wisely, we think, has it been provided that Judges shall not be eligible to sit in the House of Commons. Their functions being of the utmost importance to the wellbeing and safety of the community, it is above all things desirable that they should not be allowed to mingle actively in that strife of parties, which must, to a certain extent, in very many cases, warp the judgment, or at least give a strong political bias. The judicial atmosphere ought to be not only pure but calm, for so constituted are the human frame and mind, that excitement of any kind is apt to disturb the equilibrium of the judgment, and often suggests hasty views, which will not bear the test of severe and dispassionate investigation. Neither should the attention of a Judge be too much directed to objects alien to his function. Undoubtedly there are minds so active and capacious that they rebel against any restriction of their powers, and go beyond their proper sphere, led away by a craving for intellectual exercise, or under the influence of overpowering ambition. But these constitute the exception, not the rule; and we humbly venture to think that the best judges are to be found among the men who deviate least from the tenor of their way, and who do not devote themselves ardently to other occupations or pursuits. Therefore we have great doubts as to the propriety of the system which would necessarily, to some extent, expose the judge to the influences of the politician, or, at any rate, distract his attention from what is or ought to be the main object and purpose of his life. Besides this, it is not convenient or decorous that there should be anywhere an unpaid tribunal upon which such serious responsibilities devolve. Judges receive salaries in order that they may be compelled to do their work, and overcome that tendency towards indolence from which very few of the human race are altogether free. The salaried Judge must act: he must attend to every case which is brought before him, unless he can allege occasional failure of health, or unless he declines on account of interest or affinity. But a voluntary and unpaid Judge may absent himself at pleasure, and without responsibility—a very serious matter to suitors, and, as we think, inconsistent with the proper administration of justice. For many reasons, therefore, it appears to us that the time has arrived when the supreme appeal court of the realm should be placed upon a footing different from that which has hitherto existed, and that it should be so remodelled as to give it a permanent and responsible character. We have already observed that, as regards the great body of the Peers, their appellate jurisdiction and power is merely a name; and surely it is not worth retaining the shadow when the substance has passed away. There are evidently many deficiencies in the present system. The bulk of appeals are from the Scottish courts; and as the Scotch law differs materially from that of England, being based altogether upon a separate foundation, it is important that at least one Judge, intimately acquainted with the system, and trained to its technicalities, should be a member of the court of last resort. Looking to the present state of the Scottish bar and bench, we must confess that we entertain grave doubts whether any competent lawyer could be found to undertake such a duty for the unsubstantial reward of a life peerage; and we apprehend that no satisfactory or thoroughly efficient arrangement for the determination of appeals from the courts of England, Scotland, and Ireland can be effected, unless based upon the principle of delegating the appellate jurisdiction of the House of Peers to a court, holding its sittings in London, comprising the highest legal talent which can be drawn from the three kingdoms, but not necessarily, in so far as its members are concerned, directly connected with the peerage. Of course, the Judges in such a court of appeal should be, like all other Judges, the paid servants of the State; and we are confident that such a measure, the details of which would be matter of grave consideration, could not fail to be acceptable, and must prove highly beneficial to the country at large. Indeed, it is manifest that some such alteration of the law is now peremptorily required; as it is upon the inconvenience and insecurity of the working of the present system of appellate jurisdiction, as vested nominally in the whole body of the House of Peers, that the main arguments in favour of what we must consider as a dangerous attempt to destroy the hereditary constitution of the Upper House have been founded.