Miscellaneous Writings and Speeches — Volume 4

For my own part, I think that the question of Parliamentary Reform is one which must soon be taken up; but it ought to be taken up by the Government; and I hope, before long, to see in office a Ministry which will take it up in earnest. I dare say that you will not suspect me of saying so from any interested feeling. In no case whatever shall I again be a member of any Ministry. During what may remain of my public life, I shall be the servant of none but you. I have nothing to ask of any government, except that protection which every government owes to a faithful and loyal subject of the Queen. But I do hope to see in office before long a Ministry which will treat this great question as it should be treated. It will be the duty of that Ministry to revise the distribution of power. It will be the duty of that Ministry to consider whether small constituent bodies, notoriously corrupt, and proved to be corrupt, such, for example, as Harwich, ought to retain the power of sending members to Parliament. It will be the duty of such a Ministry to consider whether small constituent bodies, even less notoriously corrupt, ought to have, in the counsels of the empire, a share as great as that of the West Riding of York, and twice as great as that of the county of Perth. It will be the duty of such a Ministry to consider whether it may not be possible, without the smallest danger to peace, law, and order, to extend the elective franchise to classes of the community which do not now possess it. As to universal suffrage, on that subject you already know my opinions; and I now come before you with those opinions strengthened by everything which, since I last professed them, has passed in Europe. We now know, by the clearest of all proofs, that universal suffrage, even united with secret voting, is no security against the establishment of arbitrary power. But, Gentlemen, I do look forward, and at no very remote period, to an extension of the franchise, such as I once thought unsafe. I believe that such an extension will, by the course of events, be brought about in the very best and happiest way. Perhaps I may be sanguine: but I think that good times are coming for the labouring classes of this country. I do not entertain that hope because I expect that Fourierism, or Saint Simonianism, or Socialism, or any of those other "isms" for which the plain English word is "robbery," will prevail. I know that such schemes only aggravate the misery which they pretend to relieve. I know that it is possible, by legislation, to make the rich poor, but that it is utterly impossible to make the poor rich. But I believe that the progress of experimental science, the free intercourse of nation with nation, the unrestricted influx of commodities from countries where they are cheap, and the unrestricted efflux of labour towards countries where it is dear, will soon produce, nay, I believe that they are beginning to produce, a great and most blessed social revolution. I need not tell you, Gentlemen, that in those colonies which have been planted by our race,—and, when I speak of our colonies I speak as well of those which have separated from us as of those which still remain united to us,—I need not tell you that in our colonies the condition of the labouring man has long been far more prosperous than in any part of the Old World. And why is this? Some people tell you that the inhabitants of Pennsylvania and New England are better off than the inhabitants of the Old World, because the United States have a republican form of government. But we know that the inhabitants of Pennsylvania and New England were more prosperous than the inhabitants of the Old World when Pennsylvania and New England were as loyal as any part of the dominions of George the First, George the Second, and George the Third; and we know that in Van Diemen's Land, in New Zealand, in Australasia, in New Brunswick, in Canada, the subjects of Her Majesty are as prosperous as they could be under the government of a President. The real cause is that, in these new countries, where there is a boundless extent of fertile land, nothing is easier than for the labourer to pass from the place which is overstocked with labour to the place which is understocked; and that thus both he who moves and he who stays always have enough. This it is which keeps up the prosperity of the Atlantic States of the Union. They pour their population back to the Ohio, across the Ohio to the Mississippi, and beyond the Mississippi to the Rocky Mountains. Everywhere the desert is receding before the advancing flood of human life and civilisation; and, in the meantime, those who are left behind enjoy abundance, and never endure such privations as in old countries too often befall the labouring classes. And why has not the condition of our labourers been equally fortunate? Simply, as I believe, on account of the great distance which separates our country from the new and unoccupied part of the world, and on account of the expense of traversing that distance. Science, however, has abridged, and is abridging, that distance: science has diminished, and is diminishing, that expense. Already New Zealand is, for all practical purposes, nearer to us than New England was to the Puritans who fled thither from the tyranny of Laud. Already the ports of North America, Halifax, Boston, and New York, are nearer to us than, within the memory of persons now living, the Island of Skye and the county of Donegal were to London. Already emigration is beginning to produce the same effect here which it has produced on the Atlantic States of the Union. And do not imagine that our countryman who goes abroad is altogether lost to us. Even if he goes from under the dominion of the British Queen and the protection of the British flag he will still, under the benignant system of free trade, continue to be bound to us by close ties. If he ceases to be a neighbour, he is still a benefactor and a customer. Go where he may, if you will but maintain that system inviolate, it is for us that he is turning the forests into cornfields on the banks of the Mississippi; it is for us that he is tending his sheep and preparing his fleeces in the heart of Australasia; and in the meantime it is from us that he receives those commodities which are produced with most advantage in old societies, where great masses of capital have been accumulated. His candlesticks and his pots and his pans come from Birmingham; his knives from Sheffield; the light cotton jacket which he wears in summer from Manchester; the good cloth coat which he wears in winter from Leeds; and in return he sends us back, from what was lately a wilderness, the good flour out of which is made the large loaf which the British labourer divides among his children. I believe that it is in these changes that we shall see the best solution of the question of the franchise. We shall make our institutions more democratic than they are, not by lowering the franchise to the level of the great mass of the community, but by raising, in a time which will be very short when compared with the existence of a nation, the great mass up to the level of the franchise.

I feel that I must stop. I had meant to advert to some other subjects. I had meant to say something about the ballot, to which, as you know, I have always been favourable; something about triennial parliaments, to which, as you know, I have always been honestly opposed; something about your university tests; something about the cry for religious equality which has lately been raised in Ireland; but I feel that I cannot well proceed. I have only strength to thank you again, from the very bottom of my heart, for the great honour which you have done me in choosing me, without solicitation, to represent you in Parliament. I am proud of our connection; and I shall try to act in such a manner that you may not be ashamed of it.

EXCLUSION OF JUDGES FROM THE HOUSE OF COMMONS. (JUNE 1, 1853) A SPEECH DELIVERED IN THE HOUSE OF COMMONS ON THE 1ST OF JUNE 1853

On the first of June 1853, Lord Hotham, Member for Kent, moved the third reading of a bill of which the chief object was to make the Master of the Rolls incapable of sitting in the House of Commons. Mr Henry Drummond, Member for Surrey, moved that the bill should be read a third time that day six months. In support of Mr Drummond's amendment the following Speech was made.

The amendment was carried by 224 votes to 123.

I cannot, Sir, suffer the House to proceed to a division without expressing the very strong opinion which I have formed on this subject. I shall give my vote, with all my heart and soul, for the amendment moved by my honourable friend the Member for Surrey. I never gave a vote in my life with a more entire confidence that I was in the right; and I cannot but think it discreditable to us that a bill for which there is so little to be said, and against which there is so much to be said, should have been permitted to pass through so many stages without a division.

On what grounds, Sir, does the noble lord, the Member for Kent, ask us to make this change in the law? The only ground, surely, on which a Conservative legislator ought ever to propose a change in the law is this, that the law, as it stands, has produced some evil. Is it then pretended that the law, as it stands, has produced any evil? The noble lord himself tells you that it has produced no evil whatever. Nor can it be said that the experiment has not been fairly tried. This House and the office of Master of the Rolls began to exist, probably in the same generation, certainly in the same century. During six hundred years this House has been open to Masters of the Rolls. Many Masters of the Rolls have sate here, and have taken part, with great ability and authority, in our deliberations. To go no further back than the accession of the House of Hanover, Jekyll was a member of this House, and Strange, and Kenyon, and Pepper Arden, and Sir William Grant, and Sir John Copley, and Sir Charles Pepys, and finally Sir John Romilly. It is not even pretended that any one of these eminent persons was ever, on any single occasion, found to be the worse member of this House for being Master of the Rolls, or the worse Master of the Rolls for being a member of this House. And if so, is it, I ask, the part of a wise statesman, is it, I ask still more emphatically, the part of a Conservative statesman, to alter a system which has lasted six centuries, and which has never once, during all those centuries, produced any but good effects, merely because it is not in harmony with an abstract principle?

And what is the abstract principle for the sake of which we are asked to innovate in reckless defiance of all the teaching of experience? It is this; that political functions ought to be kept distinct from judicial functions. So sacred, it seems, is this principle, that the union of the political and judicial characters ought not to be suffered to continue even in a case in which that union has lasted through many ages without producing the smallest practical inconvenience. "Nothing is so hateful," I quote the words of the noble lord who brought in this bill, "nothing is so hateful as a political judge."

Now, Sir, if I assent to the principle laid down by the noble lord, I must pronounce his bill the most imbecile, the most pitiful, attempt at reform that ever was made. The noble lord is a homoeopathist in state medicine. His remedies are administered in infinitesimal doses. If he will, for a moment, consider how our tribunals are constituted, and how our parliament is constituted, he will perceive that the judicial and political character are, through all grades, everywhere combined, everywhere interwoven, and that therefore the evil which he proposes to remove vanishes, as the mathematicians say, when compared with the immense mass of evil which he leaves behind.

It has been asked, and very sensibly asked, why, if you exclude the Master of the Rolls from the House, you should not also exclude the Recorder of the City of London. I should be very sorry to see the Recorder of the City of London excluded. But I must say that the reasons for excluding him are ten times as strong as the reasons for excluding the Master of the Rolls. For it is well-known that political cases of the highest importance have been tried by Recorders of the City of London. But why not exclude all Recorders, and all Chairmen of Quarter Sessions? I venture to say that there are far stronger reasons for excluding a Chairman of Quarter Sessions than for excluding a Master of the Rolls. I long ago attended, during two or three years, the Quarter Sessions of a great county. There I constantly saw in the chair an eminent member of this House. An excellent criminal judge he was. Had he been a veteran lawyer, he could hardly have tried causes more satisfactorily or more expeditiously. But he was a keen politician: he had made a motion which had turned out a Government; and when he died he was a Cabinet Minister. Yet this gentleman, the head of the Blue interest, as it was called, in his county, might have had to try men of the Orange party for rioting at a contested election. He voted for the corn laws; and he might have had to try men for breaches of the peace which had originated in the discontent caused by the corn laws. He was, as I well remember, hooted, and, I rather think, pelted too, by the mob of London for his conduct towards Queen Caroline; and, when he went down to his county, he might have had to sit in judgment on people for breaking windows which had not been illuminated in honour of Her Majesty's victory. This is not a solitary instance. There are, I dare say, in this House, fifty Chairmen of Quarter Sessions. And this is an union of judicial and political functions against which there is really much to be said. For it is important, not only that the administration of justice should be pure, but that it should be unsuspected. Now I am willing to believe that the administration of justice by the unpaid magistrates in political cases is pure: but unsuspected it certainly is not. It is notorious that, in times of political excitement, the cry of the whole democratic press always is that a poor man, who has been driven by distress to outrage, has far harder measure at the Quarter Sessions than at the Assizes. So loud was this cry in 1819 that Mr Canning, in one of his most eloquent speeches, pronounced it the most alarming of all the signs of the times. See then how extravagantly, how ludicrously inconsistent your legislation is. You lay down the principle that the union of political functions and judicial functions is a hateful abuse. That abuse you determine to remove. You accordingly leave in this House a crowd of judges who, in troubled times, have to try persons charged with political offences; of judges who have often been accused, truly or falsely, of carrying to the judgment seat their political sympathies and antipathies; and you shut out of the house a single judge, whose duties are of such a nature that it has never once, since the time of Edward the First, been even suspected that he or any of his predecessors has, in the administration of justice, favoured a political ally, or wronged a political opponent.

But even if I were to admit, what I altogether deny, that there is something in the functions of the Master of the Rolls which makes it peculiarly desirable that he should not take any part in politics, I should still vote against this bill, as most inconsistent and inefficient. If you think that he ought to be excluded from political assemblies, why do not you exclude him? You do no such thing. You exclude him from the House of Commons, but you leave the House of Lords open to him. Is not the House of Lords a political assembly? And is it not certain that, during several generations, judges have generally had a great ascendency in the House of Lords? A hundred years ago a great judge, Lord Hardwicke, possessed an immense influence there. He bequeathed his power to another great judge, Lord Mansfield. When age had impaired the vigour of Lord Mansfield, the authority which he had, during many years, enjoyed, passed to a third judge, Lord Thurlow. Everybody knows what a dominion that eminent judge, Lord Eldon, exercised over the peers, what a share he took in making and unmaking ministries, with what idolatrous veneration he was regarded by one great party in the State, with what dread and aversion he was regarded by the other. When the long reign of Lord Eldon had terminated, other judges, Whig and Tory, appeared at the head of contending factions. Some of us can well remember the first ten days of October, 1831. Who, indeed, that lived through those days can ever forget them? It was the most exciting, the most alarming political conjuncture of my time. On the morning of the eighth of October, the Reform Bill, after a discussion which had lasted through many nights, was rejected by the Lords. God forbid that I should again see such a crisis! I can never hope again to hear such a debate. It was indeed a splendid display of various talents and acquirements. There are, I dare say, some here who, like myself, watched through the last night of that conflict till the late autumnal dawn, sometimes walking up and down the long gallery, sometimes squeezing ourselves in behind the throne, or below the bar, to catch the eloquence of the great orators who, on that great occasion, surpassed themselves. There I saw, in the foremost ranks, confronting each other, two judges, on one side Lord Brougham, Chancellor of the realm, on the other Lord Lyndhurst, Chief Baron of the Exchequer. How eagerly we hung on their words! How eagerly those words were read before noon by hundreds of thousands in the capital, and within forty-eight hours, by millions in every part of the kingdom! With what a burst of popular fury the decision of the House was received by the nation! The ruins of Nottingham Castle, the ruins of whole streets and squares at Bristol, proved but too well to what a point the public feeling had been wound up. If it be true that nothing is so hateful to the noble lord, the Member for Kent, as a judge who takes part in political contentions, why does he not bring in a bill to prevent judges from entering those lists in which Lord Brougham and Lord Lyndhurst then encountered each other? But no: the noble lord is perfectly willing to leave those lists open to the Master of the Rolls. The noble lord's objection is not to the union of the judicial character and the political character. He is quite willing that anywhere but here judges should be politicians. The Master of the Rolls may be the soul of a great party, the head of a great party, the favourite tribune of a stormy democracy, the chief spokesman of a haughty aristocracy. He may do all that declamation and sophistry can do to inflame the passions or mislead the judgment of a senate. But it must not be in this room. He must go a hundred and fifty yards hence. He must sit on a red bench, and not on a green one. He must say, "My Lords," and not "Mr Speaker." He must say, "Content," and not "Aye." And then he may, without at all shocking the noble lord, be the most stirring politician in the kingdom.

But I am understating my case. I am greatly understating it. For, Sir, this union of the judicial character and the political character, in Members of the other House of Parliament, is not a merely accidental union. Not only may judges be made peers; but all the peers are necessarily judges. Surely when the noble lord told us that the union of political functions and of judicial functions was the most hateful of all things, he must have forgotten that, by the fundamental laws of the realm, a political assembly is the supreme court of appeal, the court which finally confirms or annuls the judgments of the courts, both of common law and of equity, at Westminster, of the courts of Scotland, of the courts of Ireland, of this very Master of the Rolls about whom we are debating. Surely, if the noble lord's principle be a sound one, it is not with the Master of the Rolls but with the House of Peers that we ought to begin. For, beyond all dispute, it is more important that the court above should be constituted on sound principles than that the court below should be so constituted. If the Master of the Rolls goes wrong, the House of Peers may correct his errors. But who is to correct the errors of the House of Peers? All these considerations the noble lord overlooks. He is quite willing that the peers shall sit in the morning as judges, shall determine questions affecting the property, the liberty, the character of the Queen's subjects, shall determine those questions in the last resort, shall overrule the decisions of all the other tribunals in the country; and that then, in the afternoon, these same noble persons shall meet as politicians, and shall debate, sometimes rather sharply, sometimes in a style which we dare not imitate for fear that you, Sir, should call us to order, about the Canadian Clergy Reserves, the Irish National Schools, the Disabilities of the Jews, the Government of India. I do not blame the noble lord for not attempting to alter this state of things. We cannot alter it, I know, without taking up the foundations of our constitution. But is it not absurd, while we live under such a constitution, while, throughout our whole system from top to bottom, political functions and judicial functions are combined, to single out, not on any special ground, but merely at random, one judge from a crowd of judges, and to exclude him, not from all political assemblies, but merely from one political assembly? Was there ever such a mummery as the carrying of this bill to the other House will be, if, unfortunately, it should be carried thither. The noble lord, himself, I have no doubt, a magistrate, himself at once a judge and a politician, accompanied by several gentlemen who are at once judges and politicians, will go to the bar of the Lords, who are all at once judges and politicians, will deliver the bill into the hands of the Chancellor, who is at once the chief judge of the realm and a Cabinet Minister, and will return hither proud of having purified the administration of justice from the taint of politics.

No, Sir, no; for the purpose of purifying the administration of justice this bill is utterly impotent. It will be effectual for one purpose, and for one purpose only, for the purpose of weakening and degrading the House of Commons. This is not the first time that an attempt has been made, under specious pretexts, to lower the character and impair the efficiency of the assembly which represents the great body of the nation. More than a hundred and fifty years ago there was a general cry that the number of placemen in Parliament was too great. No doubt, Sir, the number was too great: the evil required a remedy: but some rash and short-sighted though probably well meaning men, proposed a remedy which would have produced far more evil than it would have removed. They inserted in the Act of Settlement a clause providing that no person who held any office under the Crown should sit in this House. The clause was not to take effect till the House of Hanover should come to the throne; and, happily for the country, before the House of Hanover came to the throne, the clause was repealed. Had it not been repealed, the Act of Settlement would have been, not a blessing, but a curse to the country. There was no want, indeed, of plausible and popular commonplaces in favour of this clause. No man, it was said, can serve two masters. A courtier cannot be a good guardian of public liberty. A man who derives his subsistence from the taxes cannot be trusted to check the public expenditure. You will never have purity, you will never have economy, till the stewards of the nation are independent of the Crown, and dependent only on their constituents. Yes; all this sounded well: but what man of sense now doubts that the effect of a law excluding all official men from this House would have been to depress that branch of the legislature which springs from the people, and to increase the power and consideration of the hereditary aristocracy? The whole administration would have been in the hands of peers. The chief object of every eminent Commoner would have been to obtain a peerage. As soon as any man had gained such distinction here by his eloquence and knowledge that he was selected to fill the post of Chancellor of the Exchequer, Secretary of State, or First Lord of the Admiralty, he would instantly have turned his back on what would then indeed have been emphatically the Lower House, and would have gone to that chamber in which alone it would have been possible for him fully to display his abilities and fully to gratify his ambition. Walpole and Pulteney, the first Pitt and the second Pitt, Fox, Windham, Canning, Peel, all the men whose memory is inseparably associated with this House, all the men of whose names we think with pride as we pass through St Stephen's Hall, the place of their contentions and their triumphs, would, in the vigour and prime of life, have become Barons and Viscounts. The great conflict of parties would have been transferred from the Commons to the Lords. It would have been impossible for an assembly, in which not a single statesman of great fame, authority, and experience in important affairs would have been found, to hold its own against an assembly in which all our eminent politicians and orators would have been collected. All England, all Europe, would have been reading with breathless interest the debates of the peers, and looking with anxiety for the divisions of the peers, while we, instead of discussing high questions of state, and giving a general direction to the whole domestic and foreign policy of the realm, should have been settling the details of canal bills and turnpike bills.