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has already become ' a matter of urgent necessity.'

In the new edition of his Essay, his lordship has pointed out
with great force and clearness the growing evils arising from the
want of sufficient power in the House of Commons on the part of



{ On July 23, 1873, on May 30, to treble the number of voters in the

1876, on June 29, 1877, and July 7, counties. Hans. D. v. 229, p. 1408 ;

1875. It has been calculated that v. 235, p. 524.
the effect of this measure would be



32 GENERAL INTRODUCTION.

ministers, e We are here reminded of an anecdote told by Lord
Brougham, in the House of Lords, in 1847. In conversation with
Bishop Burnet, King William III. once remarked that he had no
very clear opinion whether a monarchical or a republican form of
government was the best, for he saw many reasons in favour of both.
' But,' said his Majesty, ' I am quite sure which of all governments
is the worst, and that is a monarchy without due power vested
in the executive ; anything is better than that.' ' So say I,' added
Lord Brougham, ' of an impotent ministry ; give me any ministry
rather than that.' h

' Our constitution brings the whole conduct of the
government under the virtual control of the House of
Commons ; unless therefore ministers, as its leaders, are
enabled to exercise in that chamber an authority that
cannot easily be shaken, and to command a majority on
all ordinary occasions, it is obvious that the policy of
the government must fall under the direction of a fluc-
tuating majority of the House ; and their measures will
necessarily be ruled by popular passion and feeling,
instead of by reason and prudence.' For the require-
ments of government continually demand the aid of
legislation ; whether for the grant of money, or for the
amelioration of existing institutions. A strong govern-
ment, enjoying the confidence of Parliament, is able to
rely upon its concurrence in all acts which may be
fcviis deemed advisable for the public good. But if those
from a ng who have been entrusted with the administration of
ministry public affairs are unable to control the legislation of
Parliament, so as to bring it into unison with their own
policy, good and stable government will be impossible.
In such a case, ' the law-makers and tax-imposers are
sure to quarrel with the tax requirers.' The executive
is crippled by not getting the laws it needs, or the money
it wants ; and becomes unfit for its name, since it can-
not execute what it may decide upon : while the legis-
lature becomes demoralised, by attempting to assume



Grey's Parl. Govt. pp. 00-104, 220-220, 232.
" Hans. D. v. 101, p. 814.



NECESSITY OF STRENGTHENING THE EXECUTIVE. 33

the reins of government without being itself responsible
for the consequences of its own acts, and by venturing
to intrude upon matters which are beyond its province
to determine. 1 But where the balance of power between
the component parts of the supreme authority is duly
preserved, these evils will have no existence. Parlia- Benefits
ment, on the one hand, will be able to fulfil its proper admits- e
function, of exercising a vigilant control over every act tration -
of administration, and being prompt to interpose upon
every occasion of abuse or misgovernment ; and, on the
other hand, the responsible servants of the crown, while
always dependent upon an enlightened public opinion
for the approval of their conduct, and subject to dis-
missal if they fail to secure the confidence of Parliament
in their general policy, will nevertheless, so long as they
retain that confidence, be in possession of ' sufficient
power to act according to their own deliberate judgment,
instead of being compelled to follow the shifting currents
of the popular will.' j

This has been the practical working of parlia-
mentary government in England, at least until the
present day, when we are beginning to experience the
injurious effects of weak administrations. A result so
excellent, however, has not been attained without con-
siderable alloy. In the gradual development of the
constitution, the separate rights of other estates of
the realm, which have become absorbed into the House
of Commons, have only been preserved by means of
anomalous and corrupt practices and departures from
principle in our representative system, which no one
would willingly see perpetuated . k It is to be hoped
that the wisdom of Parliament may be able to devise
some method of preserving the just weight and influence



1 See Bagehot on the Eng. Const. 182, pp. 158, 2108.
pp. 20, 172. For examples of the J Grey, Parl. Govt. pp. 236, 238.
increasing weakness of the executive k See Park's Dogmas, p. 59.
in the II. of Com. sea Hans. D. v.

VOL. I. D



34 GENERAL INTRODUCTION.

of the crown in a reformed legislature which would be
free from objection in principle, and whereby the full
benefits of an equitable parliamentary government could
be secured with the sanction and authority of law.
Ministers Under the altered circumstances herein contem

in the

House of plated, it is probable that as a general rule the sove-
reign would select her leading ministers in the House
of Commons either from the life members, or from
amongst the members chosen by the House at the
commencement of every Parliament. This would be
very preferable to the plan that has been suggested by

Ought not some writers, of authorising ministers, who are required

to sit ex- , , . ,. . , TT ..

ojKcio. by the public service to have seats in the House ot
Commons, to sit in that assembly by virtue of their
offices. 1 Such an arrangement, however convenient,
would be a great innovation upon the acknowledged
principles of the constitution, and might occasion
very serious consequences. By ceasing to combine
the character of member of Parliament with that of
servant of the crown, and holding their seats in the
latter capacity only, much misapprehension as to the
true position of ministers would naturally be engendered.
It might appear as though the crown, whom alone they
professed to represent, was a power apart from, if not
antagonistic to the legislature. The prevalence of any
such idea would materially jeopardise the harmonious
action of the three branches of Parliament. 111

It now only remains to point out the position occu-
pied by the Houses of Lords and Commons respectively
in the English political system.

of fl o e n e ^ e R ev l ut i n f 1688 placed the control of the

families, government of England in the hands of the great

county families ; and from that period until 1832 the



1 See Greg's Pol. Essays, v. 2, first Earl Grey and of Ld. Althorp

p. 582. to the same efr'ect, Hans. D. v. 147,

m See Austin's Plea for the Const, p. 903 ; and Baprehot, Eng. Const.

p. 28, n ; also the opinions of the p. 224.



POWER OF PEERAGE PRIOR TO THE REFORM BILL. 35

power of the peerage was immense. But that Revo-
lution was mainly aristocratic. From the time of the
Revolution to the reign of George III., the Whig party
almost always preponderated in the House of Lords,
and included the families of the greatest influence and
dignity. Liberal tendencies, in fact, have always been Liberal
a distinguishing mark of the English nobility from the Jesof'
days of King John, when they obtained Magna Charta nobilit y-
for the people ; and their interests, as a class, have ever
since been indissolubly interwoven with those of the
people. n Nevertheless, the House of Lords, as a part
of the nation, owing their position to their individual
territorial possessions, and to the stable principle of here-
ditary descent, continues to exercise important political
functions, which the independence and security of their
position peculiarly qualify them to discharge. They
embody, in a practical form, the Conservative element
as an important and necessary counterpoise to the
progressive element, which is the distinctive quality of
the House of Commons. This power was exercised,
however, not so much in their own Chamber as indi-
rectly towards the sovereign, and over the county and
borough elections. Their influence at court, and their
authority as landed proprietors in the constituencies,
generally made them virtually supreme over every suc-
cessive administration. Consequently, the fate of a
cabinet was virtually determined by the relative
strength of the rival factions into which the leading
families were divided. But the Reform Bill of 1832
deprived them of the greater portion of this power, and
transferred it to the middle class. The landed interest
is still, indeed, very influential in the House of Com-
mons, but it is no longer dominant, as heretofore. The
commercial and manufacturing interests, which have



n W. E. H. Leckv, in N. Am. See a paper by Bonamy Price
Re,v. v. 126, p. 02. in Con. Rev. v. 38, p. 942.

n 2



36 GENERAL INTRODUCTION.

attained to such enormous magnitude within the
present century, now possess a great and increasing
share of political power.

Adminis- It has been said that ' the power of the peerage is

capacity greater in every part of England than in their own
of the House. ' p ' Its members hold innumerable elective
offices of more or less importance, conferred upon them
because the community at large, when it exercises its
own unbiassed discretion, rightly or wrongly prefers
peers and men of large landed estate to all competitors
of pretensions otherwise equal. ' q Thus our aristocracy
have shewn a special capacity for administration as
governors of colonies and as viceroys of India and of
Ireland. And at home they naturally take the lead in
the management of local affairs. In Parliament, how-
ever, J,he Lords have always reflected, with more or less
distinctness, the prevailing characteristics of- the age
in which they lived. In addition to their legitimate
weight and influence as representing the great bulk of
the landed property of the kingdom, they have generally
been conspicuous for the amount of legal ability, poli-
tical knowledge, and administrative experience to be
found amongst them. Moreover, as a class, they are
eminently distinguished for their high personal qualities.
For cultivation, refinement, moral worth, active and
intelligent interest in the welfare of those dependent
upon them, and for general sympathy in the progress
of the whole community, the aristocracy of England
will favourably compare with that of every other nation
in Christendom/ As an independent branch of the
legislature, they are therefore entitled to exercise a
very substantial power, which should serve as a posi-

P Mr. Disraeli, Hans. D. v. 185, p. v. 11, p. 4.

232; Mr. Gladstone, 19th Cen. v. 2, ' See Hans. D. v. 143, p. 609; v.

p. 547. 159, p. 1571 ; also 76. v. 162, p. 2137 ;

J See Sat. Rev. Oct. 7, 1871, p. and Lord Carnarvon's speech, Ib. v.

453 ; also, Ld. Iloughton'e paper, on 196, p. 1179.
the House of Lords, in Fort. Rev.



INFLUENCE OF THE HOUSE OF LORDS. 37

five check upon the Lower House when it may have
been induced to act with unwise precipitation. 9

But the growing political importance of the House Modified
of Commons, since the establishment of parliamentary between*
government, has materially modified the relations be- ? th ,

* . Chambers.

tween the two Chambers, and lessened the authority
which theoretically appertains to the House of Lords
as a co-ordinate and co-equal branch of the imperial
legislature. Though equally free with the Commons
to express their opinion upon all acts of administration,
and their approval or otherwise of the general conduct
or policy of the cabinet, they are unable, by their vote,
to support or overthrow a ministry against the will of
the Lower House. ' To place upon the House of Lords
the weight and responsibility of controlling the executive
government of this country, would soon put that House
in a position which they have never hitherto occupied,
and which they could not safely maintain.' 1 Never-
theless, the censure of the policy of a government by
the House of Lords is ' a matter of very great import-
ance,' and can only be counterbalanced by the formal
approval of the same policy by the House of Commons. 11
It is true that the Grey ministry resigned, in 1832, in
consequence of the rejection of the Reform Bill by the
House of Lords ; but this was an instance of parlia-
mentary obstruction to a measure of vital importance,
which the administration had pledged themselves to
carry through the legislature. After an ineffectual
attempt to form a new ministry, the former cabinet was



s See Grey, Parl. Govt. p. 64 ; and Parl. 1838, pp. 2062, i>104, 2114,

Corresp. Will. IV. with Earl Grey, 2121; 1839, pp. 1705, 1737, 1963;

v. 2, pp. 98, 109, 118. Hans. D. (Lords) August 24, 1841 ;

* Lord John Russell, in Hans. D. Hans. D. v. 112, pp. 105, 694, 721;

v. 112, p. 105. censure of foreign policy of ministers

u Ld. John Russell in Hans. D. by the Lords, on July 8, 1864; a

v. 112, p. 105 ; F.arl Derby, Ib. v. similar vote of censure proposed in

206, p. 1856 ; May, Const. Hist. v. the Commons on July 4, negatived

1, p. 467. See precedents: Mir. July 8, 1864.



38 GENERAL INTRODUCTION.

reinstated in office, and succeeded in obtaining the con-
sent of the Lords to their measure of reform/
The Lords In one important particular the House of Lords differs,
sectional and has always differed, from the House of Commons,
interest. j> ne representation of sectional interests has never found
a place therein. ' It has never had a railway interest, or
a public-house interest, or an interest adverse to the
reformation of law, or indeed any of that importunate
advocacy which disturbs the due course of political
action, and perverts the instrument of legislation to
private and particular advantage. On the contrary,
it has acted as a sharp corrective to some of the risks
which the public good runs when parliamentary
measures are manipulated by the representatives of
sectional interests. ' w Moreover, the members of the
House of Lords, from their independent position as
hereditary legislators, are comparatively free from the
bondage of party influences an inestimable advantage
in lessening the evils unavoidably connected with party
government in our political system.

The Lords I n the fulfilment of their legislative functions, the
initiate Lords, from the commencement of the present century,
tion Sla have been becoming less and less a House for the
initiation of great public measures. Bills which concern
the improvement of the law, and certain private Bills
of a semi-judicial character, appropriately commence
with the Lords ; and in 1859 an arrangement was made
whereby a fair proportion of ordinary private Bills
should be first introduced in the Upper House, with
a view to facilitate the despatch of private business. 3 "
But as a general rule, the Commons are not disposed
to receive very favourably Bills which do not origi-
nate with themselves ; and every Ministry has felt the

v See post, p. 190. tors in Railway Companies. Fin.

w Thorold Rogers, Coll. of Lords] Reform Al. 1876, p. 129.

Protests, v. l,p. 27. But there are " May, Parl. Prac. ed. 1883, p.

about forty-six members of the House 759 ; Com. Jour. Feb. 7, 1859.
of Lords, who are Chairmen or Direc-



INFLUENCE OF THE HOUSE OF LOKDS. 39

advantage of having the support of the House of
Commons in bringing a measure before the Lords. 7
The province of the House of Lords appears more
properly to be that of controlling, revising, and amend-
ing the projects of legislation which emanate from the
House of Commons. 2 ' To balance and regulate the
political movement of the nation ; ... to test, by
temporary resistance, the sincerity and strength of the
will which demands a change ; to make legislation take
its stand on the good sense and ultimate judgment
instead of the momentary desire of the country ; and
to give continuity and stability to the general policy of
the nation. ' a In the discharge of this onerous and
important duty the House of Lords within the present
generation have asserted their independence, and vindi-
cated their responsible position as a branch of the legis-
lature upon several notable occasions. Witness their important
successful defence, in 1835, of the revenues of the Irish ^House
Church, their valuable amendments to the Municipal o Lords.
Corporations Bill, their protracted resistance to the
introduction of Jews into Parliament, their vigorous
opposition to the repeal of the Paper Duty, b their stead-
fast maintenance of the principle of Church Kates, and
their refusal to concur in legalizing marriage with a.
deceased wife's sister. A second Chamber, independent,
active, vigilant, and powerful, is, indeed, of vital neces-
sity to a well-regulated state. And it is generally

y Duke of Argyll, Hans. D. v. legislative Chambers will be found in

198, p. 1475. Creasy f s Eng. Const, p. 198 ; Mill,

z See Lords' Debates in Hans. Rep. Govt. c. xiii. ; Baron Stoek-

v. 119, pp. 246, 317; Ib. v. 98, p. mar's Memoirs, v. 2, c. xxviii.; W.

335 ; v. 159, p. 2130 ; v. 161, p. E. H. Lecky, in N. Am. Rev. v. 126,

182 ; v. 203, p. 234. And see Bage- p. 71 ; in Hearn, Govt. of Eng. pp.

hot, Eng. Const, pp. 130, 135. 540-545 ; Helps, Thoughts on Govt.

* Bonamy Price, Cont. Rev. v. 38, c. iv. ; Fort. Rev. v. 20, N.S. p. 46.

p. 947. See also the debates in Parliament

b See May, Const. Hist. v. 1, p. on the Australian Government Bill,
264 ; Hearn, Govt. of Eng. p. 167 ; in 1850; and in the House of Corn-
Hans. D. v. 197, p. 67 ; v. 208, p. mons on the New Zealand Constitu-
1873. tion, June 4, 1852; and on the S.

c The arguments in favour of two Africa Confed n . Bill, April 23, 1877.



40



GENERAL INTRODUCTION.



The Lords'
ability to
estimate
public
opinion.



Advan-
tages of
a Second
Chamber.



conceded by the best political writers, that whatever
may be the theoretical objections to the constitution
of the House of Lords, it has fulfilled the functions
which belong to an Upper Chamber of the legislature
with signal and singular success.* 1 In fact, ' as a legis-
lative body, the Lords have great facilities for estimating
the direction and strength of public opinion. Nearly
every measure has been fully discussed before they are
called upon to consider it. Hence they are enabled to
judge, at leisure, of its merits, its defects, and its popu-
larity. If the people are indifferent to its merits, they
can safely reject it altogether ; if too popular, in
principle, to be so dealt with, they may qualify, and
perhaps neutralise it, by amendments, without any
shock to public feeling. At the same time, they are
able, by their debates, to exercise an extensive influence
upon the convictions of the people. Sitting like a court
of review upon measures originating in the Lower
House, they can select from the whole armoury of
debate and public discussion the best arguments, and
the most effective appeals, to enlightened minds.' 6

In 1871, Mr. Henry Fa wcett, M.P., argued in favour of a Second
Chamber as a counterpoise to democratic ascendency in a House of
Commons chosen, as at present, on the majority principle, and, until
it should be ' elected on a plan that would make it a truly national
assembly, in which every class and section of opinion would be fairly
and proportionately represented.' f

Mr. Freeman is in favour of a Second Chamber as checking the
acts of the popular assembly ; but, in a Federal State, he considers
it indispensable for another reason viz. that it represents the
several States in their separate character. z

The result of experience in the several States of the American
Union, and the value of a Second Chamber, to represent a different



For the argument in favour of a single
Chamber, see Mr. Kinnear's paper in
Fort. Rev. Sept. 1809; Mr. Leach's
paper, Ib. Sept. 1882; and for ad-
vantages of the same in the small
West India Islands, see Mans. D. v-
206, p. 1023.



d Grey, Parl. Govt. p. 64.

e May, Const. Hist, v. 1, p. 266.
And see Trevelyan's Life of Macaulay,
v. 2, p. 55.

f Fort. Rev. N.S. v. 10, p. 503.

Int. Rev v. 3, pp. 7*24-741 .



THE HOUSE OF LORDS. 41

constituency, and to express, by its longer term of existence, the
sober second thought of the people, in contradistinction to the im-
pulsive first thought of the lower House, is ably shown in the
American ' Law Review.' h

It may be regarded, however, as a settled principle Should
of modern parliamentary government that it is not the persfstent
duty of the House of Lords to continue a persistent opposition

11 to the

opposition to measures that have been repeatedly passed commons.
by the House of Commons with large and increasing
majorities ; especially when public opinion out of doors
has been unmistakeably expressed to the same effect. 1
Such a course would inevitably lead to an infringement of
the constitutional independence of the Upper House, by
the creation of additional Peers to facilitate the passing
of the particular measure. But this is an extreme
proceeding, which could not be approved under any
circumstances ; although the right of the crown in the
exercise of this prerogative can only be restrained by
considerations of public policy. j

A serious defect has been noted in the conduct of Culpable
the great majority of the hereditary Peers of England, e nce of"



and one which has seriously impaired, if not endan-
gered, their political influence, namely, their indiffer- legislative
ence to the discharge of their parliamentary duties.
The House of Lords consists of about four hundred and
fifty Peers available for legislative service ; of these not
above two hundred take any part therein. The quorum
of the House is but three, k a number palpably inade-
quate for a numerous deliberative assembly, and the
average attendance of Peers contrasts unfavourably



h Am. L. Rev. Oct. 1869, pp. Bill, Ib. v. 149, pp. 1481, 1771 ; and

18-30. see Mr. Horsman's speech, Ib. v. 159,

1 See the D. of Wellington's letter p. 1573 ; Earl Granville, Ib. v. 196,

on his management of the House of p. 1656.

Lords, from 1830 to 1846, in Brial- J On this subject, see May, Const,

mont's Life, v. 4, p. 140 ; Lord Stanley Hist. v. 1, p. 262; and Hearn'a

(Earl of Derby) on Free Trade, remarks, in his Govt. of Eng. pp.

Hans. D. v. 86, p. 1175 ; Earls Grey 168-175.
and Lyndhurst on the Jewish Oaths k Hans. D. v. 74, p. 1016.



42



GENERAL INTRODUCTION.



Reasons
why the
Lords
should
retain con-
fidence of
the nation.



Origina-
tion of
measures
in the
Lords.



Reform of
the Lords
necessary.



with that of the other Chamber. 1 But with a large
proportion of members who are fitted by natural gifts,
high cultivation, and political experience acquired in
other fields of labour for a parliamentary career, there
is no reason why the House of Lords, if sufficiently alive
to their responsibilities, should not possess and per-
manently retain the confidence of the nation, as an
essential part of the legislature, and a main safeguard
of constitutional liberty. 111 By a new Standing Order,
adopted on April 2, 1868, an attempt has been made
to obtain a fuller attendance of members for service on
Select Committees. 11

Since 1874, as a matter of fact, an unusually large
number of important measures have originated in the
House of Lords : for example, the Public Worship Bill,
in 1874 ; the Judicature Act, in 1875 ; the Oxford
University Reform Bill, in 1876. And it is questionable
whether the influence of the House upon legislation and
upon parliamentary opinion is not increasing rather
than diminishing at the present time, notwithstanding
the rapid growth of the democratic spirit.

But in this progressive age it is evident that some
modification in the constitution of the House of Lords
is called for to enable it to retain its hold upon the
national sympathies. At present, the House of Lords
stands alone in Europe as a Second Chamber founded
wholly upon the hereditary principle ; and it is in this



1 See May, Const. IJist. v. 1, p.
266; Hans. D. v. 180, p. 1034; Ld.
Iloughton, in Fort. Rev. Jan. 1872.
With the House of Com. within the
past few years, there is an increasing
disposition to attend more regularly
than formerly ; which is attributable,
in a great degree, to the higher
standard of duty which is enforced
by the constituent body. Rep. Com*,
on II. of Com. arrangements, 1867,
Evid. 264; Hans. D. v. 195, pp. 259,
467. But see 11. p. 303.



m See Hans. D. v. 188, p. 129. In
fact during the late Parliament
(1874-79) the hereditary Chamber



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