J. A. R. (John Arthur Ransome) Marriott.

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LIBRARY

UNIVERSITY OF CALIFORNIA

RIVERSIDE



Ex Libris
ISAAC FOOT
^ - - - ^ "• - -^



SECOND CHAMBERS

AN INDUCTIVE STUDY IN
POLITICAL SCIENCE



BY

J. A. R. MARRIOTT M.A.

LECTURER IN MODERN HISTORV AND POLITICAL SCIENCE
AT WORCESTER COLLEGE, OXFORD



OXFORD

AT THE CLARENDON PRESS

1910



^'^ \



HENRY FROWDE, M.A.

PUBLISHER TO THE UNIVERSITY OF OXFORD

LONDON, EDINBURGH, NEW YORK

TORONTO AND MELBOURNE



PREFACE

There is reason to apprehend that this work
may be regarded merely as a livre de circonstance.
That the moment of its appearance gives to it
something of that character it would be affecta-
tion to deny ; but, as a fact, it is a fragment
of a larger work to which much of my leisure
has for some years been devoted. This work may,
I trust, be completed within a reasonable time, but
meanwhile it seems not inopportune to offer to
the public an instalment which may, it is hoped,
contribute towards the solution of a problem of
immediate importance.

It is a pleasant duty to acknowledge the many
obligations which I have incurred. I do not
know of any single work which covers the same
ground, but parts of it have been traversed with
great industry, and to the labourers who have
preceded me, and of whose labours I have freely
availed myself, I wish to tender my grateful
thanks. A short list of authorities will be found
in an appendix, but I wish to acknowledge a
special debt to the works of Mr. James Bryce,
Mr. A. V. Dicey, Mr. C. H. Firth, President
Lowell of Harvard, Mr. Woodrow Wilson, Sir
Henry Maine, Mr. Lecky, Mr. A. K. Keith, and
to the collections of Constitutional Texts edited
by Mr. W. F. Dodd and M. Demombynes. To

a 2



iv PREFACE

original sources I have gone, as will be perceived,
whenever I found it possible to do so. Mr. H. E.
Egerton, Beit Professor of Colonial History,
kindly permitted me to read one of his unpublished
lectures, and in regard to Canada Mr. W. L. Grant,
Assistant Beit Lecturer, has given me the benefit
of his exceptional knowledge. To Mr. Wray
Skilbeck, Editor of the Nineteenth Century and
After, and to Mr. W. L. Courtney, Editor of
the Fortnightly Review, I am greatly indebted for
permission, generously accorded, to make use of
articles which I have contributed to those Reviews.
My friend Dr. R. W. Macan, Master of University
College, most kindly read the proofs as they passed
through the press, and though he is not in any
way responsible for the views expressed or the
manner of expressing them, I owe him a heavy debt
of gratitude for timely and valuable suggestions.
Sir William Anson, Warden of All Souls College,
was also kind enough to read much of the book
in proof and to make several interesting suggestions
of which I have gratefully availed myself. I have
been at pains to verify my references, and quote
my authorities, but much of the book has been
written from notes unavoidably made at odd
moments, and for any unacknowledged obligations
I crave pardon.

J. A. R. MARRIOTT.

Oxford,
March, 1910.



CONTENTS

CHAPTER I

INTRODUCTORY ^^^^

The bi-cameral form of Legislature — approved by the
deliberate judgement of the world — statement of the
problem ......... i

CHAPTER II

THE HOUSE OF LORDS; ANALYTICAL AND
HISTORICAL SKETCH

Evolution of the bi-cameral form in the English Parlia-
ment — reasons — the system of Estates — junction of
knights and burgesses — analysis of the existing House
of Lords — spiritual Peers — Scottish representative
Peers — Irish representative Peers — legal life Peers —
hereditary Peers — rapid growth of numbers — attempts
to arrest — Peerage Bill — Origines of the House of
Lords ^



CHAPTER III

THE UNI-CAMERAL EXPERIMENT

Abolition of the Monarchy (1649) — of the House of
Lords — the Rump of the Long Parliament — expulsion
by Cromwell — Cromwell's Parliamentary experiments
— the Instrument of Government — a single-chambered
Legislature — its failure — the Humble Petition and
Advice — the ' other ' House — the restoration of King
and Parliament -^7



vi CONTENTS



CHAPTER IV

THE POWERS AND FUNCTIONS OF THE HOUSE OF

LORDS

PAGE

Privileges of the Peerage — judicial functions of the Lords
— legislative functions — the Lords and finance —
history of the question — disputes between the Houses
— Mr. Gladstone's precedent of 1861 — ' tacking ' —
deliberative functions of the Lords — the Lords and the
Cabinet — necessity of a revising body — the Lords as
the guardians of the Constitution .... 47



CHAPTER V
THE AMERICAN SENATE

Evolution of the Senate — representative of the States —
its constitution — its functions — legislative — judicial —
executive — how far successful — compared with House
of Lords — stability of bi-cameral system in United
States 89



CHAPTER VI

THE GERMAN BUNDESRATH AND THE SWISS
STANDERATH

The Bundesrath compared with the American Senate —
contrasts — a Diet of Ambassadors — constitution —
procedure — functions — actual workings of — the Prus-
sian Herrenhaus — the Swiss Standerath — its federal
character 114



CHAPTER VII

SECOND CHAMBERS IN THE OVER-SEAS DOMINIONS

—CANADA

Evolution of Canadian self-government — Acts of 1774,
1791, 1840, and 1867 — the Second Chamber — the
federal Senate — its Constitution — nominated by the
Executive — has this worked well ? — objections to the
Senate 131



CONTENTS vii



CHAPTER VIII

SECOND CHAMBERS IN THE OVER-SEAS DOMINIONS

—AUSTRALIA

PAGE
New South Wales — the Legislative Council — Queensland
— difficulties in regard to the Legislative Council —
methods for adjusting differences between the Cham-
bers — Legislative Council of South Australia — of
Tasmania — of Western Australia — of Victoria — elec-
tive versus nominee principle — the Commonwealth
Constitution — evolution of — the Senate — constitution
and mode of election — functions — financial powers —
machinery for solution of deadlocks — constitutional
revision — the Cabinet system and federalism . . 153



CHAPTER IX

SECOND CHAMBERS IN THE OVER-SEAS DOMINIONS
—SOUTH AFRICA

Second Chambers in South Africa — Cape Colony —
Natal — Transvaal and Orange River Colony — The
federal Senate — constitution — procedure — functions —
relations of the two Houses — money Bills — dead-
locks — constitutional revision — sovereignty of Parlia-
ment — conclusions 182



CHAPTER X

THE FRENCH SENATE

Constitutional evolution in France — French constitutions
since 1789 — States-General — the uni-cameral experi-
ment — the Constitution of the year HI — bi-cameral
— the Legislature under the Consulate and First
Empire — the constitutional charter — the Chamber of
Peers — the Orleanist monarchy — a nominated Upper
Chamber — the Revolution of 1848 — a uni-cameral
Legislature — the Senate under the Second Empire —
the constitution of 1875 — the existing Senate —
its peculiar functions — the responsibility of ministers
— the National Assembly — is the Senate predominant
in France ? 197



viii CONTENTS

CHAPTER XI

SOME CONTINENTAL SECOND CHAMBERS page

The Austrian Herrenhaus — the Hungarian Table of
Magnates — the Spanish Senate — the Italian Senate —
the Portuguese House of Peers — the Netherlands
Second Chamber — the Belgian Senate — the Danish
Landsthing — the Swedish Upper House — the Nor-
wegian Lagthing — the Russian Council of the Empire
— the Turkish House of Lords 220

CHAPTER XII

SOME COMPARISONS AND CONCLUSIONS: CONSTI-

TUTIONAL REVISION IN ENGLAND

The universality of the bi-cameral system — essential to
Federalism — the House of Lords as an Imperial Senate
— a Second Chamber the safeguard of an unwritten con-
stitution — constitutional amendments under written
instruments — the flexibility of the English Constitution
— the House of Lords compared with other Second
Chambers — size — hereditary character — efficiency —
Second Chambers and finance — Second Chambers
and the Executive — the demand for revision — the
readjustment of the relations of the two Houses —
limitation of the Lords' veto — a constitutional instru-
ment — attempted reform of Constitution — efforts of
Earl Russell and Earl Grey — proposals of Lord Rose-
bery, 1884 and 1888— Lord Salisbury's Bill of 1888—
Lord Newton's Bill of 1907 — Select Committee on
Reform of House of Lords — report, December, 1908 —
analysis and criticism — the referendum — its operation
in Switzerland — various forms of — could it be adapted
to this country ? — arguments for and against — the
problem of a Second Chamber— conclusion . . . 239

APPENDIX A. — Parliamentary return showing present
composition, &c., of the House of Lords (March 10,
1910) 301

APPENDIX B.— List of accessible Authorities . . 304

APPENDIX C— Resolutions ..... 306

INDEX . .308



INTRODUCTORY

' A majority in a single assembly, when it has assumed a per-
manent character — when composed of the same persons habitually
acting together, and always assured of victory in their own House
— easily becomes despotic and overweening, if released from the
necessity of considering whether its acts will be concurred in by
another constituted authority. The same reason which induced
the Romans to have two consuls, makes it desirable there should
be two chambers : that neither of them may be exposed to the
corrupting influence of undivided power, even for the space of
a single year.' — John Stuart Mill,

' To construct a body which, without claiming co-ordinate
authority, shall act as a court of legislative revision, and as the
sober second-thought of the community, is practically beyond
the power of the pohtical architect. He must try to ensure
sobriety where he places power. To suppose that power will
allow itself on important matters to be controlled by impotence
is vain.' — Goldwin Smith.

Securus iudicat or bis ten arum. With rare
unanimity the civiUzed world has decided in
favour of a bi-cameral legislature. ' If a Second
Chamber dissents from the first, it is mischievous ;
if it agrees with it, it is superfluous.' Such was
the superficial dilemma propounded by the Abbe
Sieyes, arch-constitution-monger of the French
Revolution. ' It passes the wit of man to con-
struct an effective Second Chamber.' Such is, in
effect, the characteristic conclusion of the doc-
trinaire pessimism of which Mr. Goldwin Smith is
so distinguished an exponent. But the progressive
nations of the modern world have without an



7



2 INTRODUCTORY i

exception declined to impale themselves upon either
horn of the dilemma of Sieyes ; they have not
been deterred by abstract considerations against
the theory of two co-ordinate legislative chambers ;
they have ignored the warnings of Mr. Goldwin
Smith, and have clung, despite wide differences
of circumstance and contrasted forms of constitu-
tion, to the two-chambered structure long since
evolved by the mother of Parliaments. France —
royalist, imperialist, and republican — has through-
out all her recent constitutional changes resolutely
refused to renew the experiment associated with
the first and second Republics. The other unitary
States of Europe have, with the single exception
of Greece,^ followed the English model. Federal
States, imperial Germany and republican Switzer-
land alike, look to their Second Chambers for the
embodiment and satisfaction of the federal idea.
The great English-speaking communities beyond the
sea, whether republican or monarchical, presiden-
tial or parliamentary, federal or unitary, concur
in their adhesion to the bi-cameral arrangement.

For such unanimity in regard to one constitu-
tional device, amid endless diversity in others,
there must be soHd reasons in history, experi-
ence, and fact. Many a priori considerations may
be adduced which would seem to point in the
opposite direction. Theory finds it difficult to
escape the dilemma propounded by Sieyes. It

* Norway and Servia are sometimes reckoned among uni-
cameral legislatures ; but Greece is now (1910) considering re-
vision.



I INTRODUCTORY 3

may be urged that in the case of the mother of
ParHaments the evolution of a bi-cameral form
was accidental. In one sense it was. We might,
as will be shown hereafter, have had three Houses,
corresponding to the three Estates ; we might even,
like Sweden, have had four ; we might have had
one. The ultimate form assumed by the parlia-
mentary structure was unquestionably in some sort
accidental. But it is not as though the modern
world had had no choice — no experience of other
forms. The uni-cameral experiment was not
untried even in England. The constitutional
history of France affords examples of the tri-
cameral as well as the uni-cameral form. The
fathers of the American Constitution lacked neither
erudition nor sagacity. They were well versed
in political philosophy, and were not ignorant of
constitutional practice. Why did they, after brief
experience of the uni-cameral, adopt the bi-
cameral form of legislature ? Canada, perhaps,
was hardly a free agent ; English prepossessions
might account for adherence to the English
model, ahke in 1791, in 1840, and in 1867. But no
one can suppose that any pressure in favour of
traditional forms would have been brought to bear
upon the democratic communities in Australasia
and South Africa, had they preferred to strike out
a new path for themselves. But with unbroken
unanimity they have adhered to the old. Again
we must ask : Why ?
The following pages are not intended to supply

B 2



4 INTRODUCTORY i

a direct answer to the questions so bluntly pro-
pounded. They will be found to be primarily
expository ; in a less degree historical ; least of
all argumentative and controversial. My main
purpose is to describe, concisely but accurately,
the construction of the legislative machine in some
typical states of the modern world ; to analyse
the composition and to explain the constitutional
functions of their ' Second ' Chambers, and by this
inductive process to reach, if possible, some con-
clusions which may not only interest the student
of political institutions, but may even afford
some slight assistance to the ordinary citizen
who is confronted with the responsibility of
deciding issues, graver and more momentous
than any which have been raised during the
present generation. In arriving at a decision,
the deliberate judgement of the world cannot
safely be ignored. Nor can we regard it as super-
fluous to appreciate the reasons which have led to
its formation. But the first essential is a know-
ledge of the facts. These facts the following
pages will disclose.

With the abstract considerations for and against
a Second Chamber I am not greatly concerned.
They have long since become the commonplace of
the debating society. But their appeal leaves
both the student and the statesman unmoved.
The necessity of a counterpoise to democratic
fervour ; the safety which lies in ' sober second
thoughts ' ; the advisability of a check on hasty



I INTRODUCTORY 5

and ill-considered legislation ; the value of an
appeal from Philip drunk to Philip sober ; the
liability of a single chamber to gusts of passion and
autocratic self-regard — all these familiar argu-
ments, and many like them, may be as sound as
on the day when they were first employed ; but
somehow the salt has lost its savour. And not
less have the abstract arguments on the other
side. The only satisfactory appeal, I venture to
submit, is the appeal to history ; the only safe
guide, that of experience. Closer investigation
may suggest the conclusion that the world has
lavished its worship on a constitutional fetish ;
that the young democratic communities have
sheep-like followed a misguided leader ; or that
institutions have been unintelligently imitated
without sufficient regard to conditioning circum-
stances. On the other hand, investigation may dis-
close the fact that under conditions singularly
diverse a particular constitutional form has shown
unexpected vitality and capacity for adaptation ;
that the bi-cameral structure is, under alien skies,
a natural and not an artificial growth; that it
corresponds to proved necessities, and is, therefore,
destined to permanence. But the conclusion is
not yet. We may indeed be constrained to con-
fess that no conclusion, with any claim to universal
validity, is attainable. Be this as it may, the duty
alike of the student and of the politician is clear :
to investigate and then to judge.



II

THE HOUSE OF LORDS

ANALYTICAL AND HISTORICAL SKETCH

' While the privileges of our Peers, as hereditary legislators of
a free people, are incomparably more valuable and dignified, they
are far less invidious in their exercise than those of any other
nobility in Europe.' — Lord John Russell.

At a very early stage in its evolution the
English Parliament assumed a bi-cameral form.
This form, except for a short time during the
revolutionary period of the seventeenth century,
has been retained continuously down to the present
time. That this peculiar structure has contributed
not a little to its stability, perhaps even to its
survival, will be denied by no one who realizes the
fate which overtook the States-General of France
and the Cortes of Castille and Aragon — institutions
coeval with itself. Nevertheless, the bi-cameral
arrangement was due, hke most English institu-
tions, to a series of fortunate accidents. Like
the States-General in France and the Cortes in
Spain, the English Parliament was, in its origin,
based upon the principle of Estates. The model
Parliament of Edward I, summoned to meet at
Westminster in 1295, represented this principle.
The Estate of the Baronage were summoned in
person ; the Estate of the Clergy, partly in person



II THE HOUSE OF LORDS 7

and partly by representatives ; the Estate of the
Commons, wholly by representatives ; and all for
the primary purpose of contributing to the
financial necessities of the Crown and Kingdom.
From this fact it might have been anticipated
that Parliament would eventually organize itself
either in a single chamber or, more probably, in
three chambers, corresponding to the three Estates.
That it did not permanently assume either of these
forms was due to two facts : (i) the secession of the
representatives of the capitular and parochial
Clergy; and (ii) the junction effected in the four-
teenth century between the Knights of the Shire
and the representatives of the Boroughs and Cities.
The ' lower ' Clergy, imbued with a strong separatist
spirit, preferred to vote their money-grants to the
King in their purely clerical assemblies — the
Convocations of Canterbury and York — instead
of taking that part in the national assembly of
the realm which Edward I was wisely anxious to
assign to them. The Knights of the Shire might
naturally have been expected to associate them-
selves politically with the Baronage, the class to
which socially they belonged. And for some years
after 1295 — for how many precisely it is impossible
to say — they sat with them. By the middle of
the fourteenth century, however, the Knights
had definitely separated themselves from the
Baronage, and had effected with the Burghers
a union, which was destined to endure, in a
* Commons ' House of Parliament. Meanwhile



8 THE HOUSE OE LORDS ii

the Spiritual Peers — the Bishops and the Abbots —
had united with the Temporal Barons in a House
of Lords ; and thus, before Parliament was a cen-
tury old, it had definitely assumed the form which,
save for a brief and exceptional interval, it has
ever since retained.

That the adoption of a bi-cameral form was
in itself of first-rate significance I have already
hinted ; but it was even more important that the
different elements of which Parliament consists
should have disposed themselves as they did.
Had the Knights of the Shire continued to adhere,
as they might naturally have done, to the Barons,
the history of the English Parhament might not
improbably have resembled that of the French
States-General or the Spanish Cortes. The latter
disappeared finally in the sixteenth century, the
former just managed to survive into the seven-
teenth. The failure of representative institutions
in France and Spain was not due to any single
cause, least of all to the absence of the bi-cameral
structure. But it must be attributed in no small
measure to the success with which the Crown was
able to fan the embers of discord between the
several Estates, and particularly between the
Nobles and the Third Estate. In England such
discord was averted and the sohdarity of Parlia-
ment in its dealings with the Crown was secured
by the existence of the Knights of the Shire, and
still more by their fortunate association with the
Burghers. A glance at the history of county



II THE HOUSE OE LORDS 9

representation will suffice to prove that socially
the * Knights ' — certainly down to 1832 — belonged,
in very large measure, to the same class as the
Baronage. Not infrequently they were the sons
or brothers of members of the Second Chamber.
Their poHtical union with the Burghers was not
merely useful in contributing to the weight and
dignity of the House of Commons, but formed
an invaluable link between the two Houses.
Thanks to the existence of this Hnk the kings
of England would never, even had they wished it,
have been able to drive in a wedge between
Nobles and Commons, and to destroy each in turn.

It is, however, with the House of Lords alone
that this chapter is concerned.

That House at present consists of 627 members,
and is, therefore, by far the largest Second
Chamber in the world.^ Of its members the
vast majority owe their seats to hereditary
qualification ; all but a handful are laymen.
Now these characteristics of the House of Lords —
its large and perhaps unwieldy size, the predomin-
ance of the hereditary and lay elements — are all
comparatively modern. Down to the sixteenth
century, or, to be more precise, down to the
dissolution of the great abbeys (1539), the House
of Lords was small in numbers and was neither
predominantly lay nor predominantly hereditary
in composition. The process by which it has

* Parliamentary Paper (13), March 10, 1910. There are ten
Minors and fourteen Peeresses. See Appendix A.



10 THE HOUSE OF LORDS ii

been so profoundly altered in character will be
described presently ; but, in the first place, it is
important to analyse the elements of which the
House is at present composed. In this way some-
thing may incidentally be done to correct the vulgar
impression that all — or nearly all — the members
of the Upper House sit by a common hereditary
title. There are no less than six distinct classes of
persons entitled to sit in that House :

(i) Princes of the blood royal, sitting as here-
ditary Peers of the United Kingdom (4).

(ii) Temporal Peers of England, of Great Bri-
tain, and of the United Kingdom (548).

(iii) Spiritual Peers : 2 Archbishops and 24
Bishops (26).

(iv) Representative Peers of Scotland (16).

(v) Representative Peers of Ireland (28).

(vi) Lords of Appeal in Ordinary — ' Law
Lords ' (4) and a legal life-Peer (i).

Leaving on one side for the moment the first
two categories, which may, perhaps, be more
strictly regarded as one, there are at present
seventy-four members of the Upper House who
do not owe their position directly or solely to the
accident of birth.

Of these the Bishops represent the most ancient
element in the House. They had a place not only
in the Commune Concilium of the Norman and
Angevin Kings, but in the Anglo-Saxon Witena-
gemot ; to the model Parliament of 1295 they
were naturally, therefore, summoned by Edward I.



11 THE HOUSE OF LORDS ii

Whether they sat as Bishops — as rulers of the
Church, — or as * barons ' — tenants-in-chief of the
Crown, — is a technical point which need not detain
us. With the Bishops came the Abbots ; but
the Abbots resented the obligation to attend
Parliament, and insisted that attendance was not
incumbent upon them unless they held their
lands by military tenure. Thus, whereas 72
Abbots were summoned to Parliament by Edward I,
the number had fallen to 27 by the middle of the
fourteenth century, and at that figure it remained
until the abbeys were dissolved by the Act of 1539-


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