The foregoing chapter will have shown sufficiently how largely in one
great and necessary profession the element of moral compromise must
enter, and will show the nature of some of the moral difficulties that
attend it. We find illustrations of much the same kind in the profession
of an advocate. In the interests of the proper administration of justice
it is of the utmost importance that every cause, however defective, and
every criminal, however bad, should be fully defended, and it is
therefore indispensable that there should be a class of men entrusted
with this duty. It is the business of the judge and of the jury to
decide on the merits of the case, but in order that they should
discharge this function it is necessary that the arguments on both sides
should be laid before them in the strongest form. The clear interest of
society requires this, and a standard of professional honour and
etiquette is formed for the purpose of regulating the action of the
advocate. Misstatements of facts or of law; misquotations of documents;
strong expressions of personal opinion, and some other devices by which
verdicts may be won, are condemned; there are cases which an honourable
lawyer will not adopt, and there are rare cases in which, in the course
of a trial, he will find it his duty to throw up his brief.
But necessary and honourable as the profession may be, there are sides
of it which are far from being in accordance with an austere code of
ideal morals. It is idle to suppose that a master of the art of advocacy
will merely confine himself to a calm, dispassionate statement of the
facts and arguments of his side. He will inevitably use all his powers
of rhetoric and persuasion to make the cause for which he holds a brief
appear true, though he knows it to be false; he will affect a warmth
which he does not feel and a conviction which he does not hold; he will
skilfully avail himself of any mistake or omission of his opponent; of
any technical rule that can exclude damaging evidence; of all the
resources that legal subtlety and severe cross-examination can furnish
to confuse dangerous issues, to obscure or minimise inconvenient facts,
to discredit hostile witnesses. He will appeal to every prejudice that
can help his cause; he will for the time so completely identify himself
with it that he will make its success his supreme and all-absorbing
object; and he will hardly fail to feel some thrill of triumph if by the
force of ingenious and eloquent pleading he has saved the guilty from
his punishment or snatched a verdict in defiance of evidence.
It is not surprising that a profession which inevitably leads to such
things should have excited scruples among many good men. Swift very
roughly described lawyers as 'a society of men bred from their youth in
the art of proving by words, multiplied for the purpose, that white is
black and black is white, according as they are paid.' Dr. Arnold has
more than once expressed his dislike, and indeed abhorrence, of the
profession of an advocate. It inevitably, he maintained, leads to moral
perversion, involving, as it does, the indiscriminate defence of right
and wrong, and in many cases the knowing suppression of truth. Macaulay,
who can hardly be regarded as addicted to the refinements of an
over-fastidious morality, reviewing the professional rules that are
recognised in England, asks 'whether it be right that not merely
believing, but knowing a statement to be true, he should do all that can
be done by sophistry, by rhetoric, by solemn asseveration, by indignant
exclamation, by gesture, by play of features, by terrifying one honest
witness, by perplexing another, to cause a jury to think that statement
false.' Bentham denounced in even stronger language the habitual method
of 'the hireling lawyer' in cross-examining an honest but adverse
witness, and he declared that there is a code of morality current in
Westminster Hall generically different from the code of ordinary life,
and directly calculated to destroy the love of veracity and justice. On
the other hand, Paley recognised among falsehoods that are not lies
because they deceive no one, the statement of 'an advocate asserting the
justice or his belief of the justice of his client's cause.' Dr.
Johnson, in reply to some objections of Boswell, argues at length, but,
I think, with some sophistry, in favour of the profession. 'You are
not,' he says, 'to deceive your client with false representations of
your opinion. You are not to tell lies to the judge, but you need have
no scruple about taking up a case which you believe to be bad, or
affecting a warmth which you do not feel. You do not know your cause to
be bad till the judge determines it.... An argument which does not
convince yourself may convince the judge, and, if it does convince him,
you are wrong and he is right.... Everybody knows you are paid for
affecting warmth for your client, and it is therefore properly no
dissimulation.' Basil Montagu, in an excellent treatise on the subject,
urges that an advocate is simply an officer assisting in the
administration of justice under the impression that truth is best
elicited, and that difficulties are most effectually disentangled, by
the opposite statements of able men. He is an indispensable part of a
machine which in its net result is acting in the real interests of
truth, although he 'may profess feelings which he does not feel and may
support a cause which he knows to be wrong,' and although his advocacy
is 'a species of acting without an avowal that it is acting.'
It is, of course, possible to adopt the principles of the Quaker and to
condemn as unchristian all participation in the law courts, and although
the Catholic Church has never adopted this extreme, it seems to have
instinctively recognised some incompatibility between the profession of
an advocate and the saintly character. Renan notices the significant
fact that St. Yves, a saint of Brittany, appears to be the only advocate
who has found a place in its hagiology, and the worshippers were
accustomed to sing on his festival 'Advocatus et non latro--Res miranda
populo.' It is indeed evident that a good deal of moral compromise must
enter into this field, and the standards of right and wrong that have
been adopted have varied greatly. How far, for example, may a lawyer
support a cause which he believes to be wrong? In some ancient
legislations advocates were compelled to swear that they would not
defend causes which they thought or discovered to be unjust.[35] St.
Thomas Aquinas has laid down in emphatic terms that any lawyer who
undertakes the defence of an unjust cause is committing a grievous sin.
It is unlawful, he contends, to co-operate with any one who is doing
wrong, and an advocate clearly counsels and assists him whose cause he
undertakes. Modern Catholic casuists have dealt with the subject in the
same spirit. They admit, indeed, that an advocate may undertake the
defence of a criminal whom he knows to be guilty, in order to bring to
light all extenuating circumstances, but they contend that no advocate
should undertake a civil cause unless by a previous and careful
examination he has convinced himself that it is a just one; that no
advocate can without sin undertake a cause which he knows or strongly
believes to be unjust; that if he has done so he is himself bound in
conscience to make restitution to the party that has been injured by his
advocacy; that if in the course of a trial he discovers that a cause
which he had believed to be just is unjust he must try to persuade his
client to desist, and if he fails in this must himself abandon the
cause, though without informing the opposite party of the conclusion at
which he had arrived; that in conducting his case he must abstain from
wounding the reputation of his neighbour or endeavouring to influence
the judges by bringing before them misdeeds of his opponent which are
not connected with and are not essential to the case.[36] As lately as
1886 an order was issued from Rome, with the express approbation of the
Pope, forbidding any Catholic, mayor or judge, to take part in a
divorce case, as divorce is absolutely condemned by the Church.[37]
There have been, and perhaps still are, instances of lawyers
endeavouring to limit their practice to cases which they believed to be
just. Sir Matthew Hale is a conspicuous example, but he acknowledged
that he considerably relaxed his rule on the subject, having found in
two instances that cases which at the first blush seemed very worthless
were in truth well founded. As a general rule English lawyers make no
discrimination on this ground in accepting briefs unless the injustice
is very flagrant, nor will they, except in very extreme cases, do their
client the great injury of throwing up a brief which they have once
accepted. They contend that by acting in this way the administration of
justice in the long run is best served, and in this fact they find its
justification.
In the conduct of a case there are rules analogous to those which
distinguish between honourable and dishonourable war, but they are less
clearly defined and less universally accepted. In criminal prosecutions
a remarkable though very explicable distinction is drawn between the
prosecutor and the defender. It is the etiquette of the profession that
the former is bound to aim only at truth, neither straining any point
against the prisoner nor keeping back any fact which is favourable to
him, nor using any argument which he does not himself believe to be
just. The defender, however, is not bound, according to professional
etiquette, by such rules. He may use arguments which he knows to be
bad, conceal or shut out by technical objections facts that will tell
against his clients, and, subject to some wide and vague restrictions,
he must make the acquittal of his client his first object.[38]
Sometimes cases of extreme difficulty arise. Probably the best known is
the case of Courvoisier, the Swiss valet, who murdered Lord William
Russell in 1840. In the course of the trial Courvoisier informed his
advocate, Phillips, that he was guilty of the murder, but at the same
time directed Phillips to continue to defend him to the last extremity.
As there was overwhelming evidence that the murder must have been
committed by some one who slept in the house, the only possible defence
was that an equal amount of suspicion attached to the housemaid and cook
who were its other occupants. On the first day of the trial, before he
knew the guilt of his client from his own lips, Phillips had
cross-examined the housemaid, who first discovered the murder, with
great severity and with the evident object of throwing suspicion upon
her. What course ought he now to pursue? It happened that an eminent
judge was sitting on the bench with the judge who was to try the case,
and Phillips took this judge into his confidence, stated privately to
him the facts that had arisen, and asked for his advice. The judge
declared that Phillips was bound to continue to defend the prisoner,
whose case would have been hopeless if his own counsel abandoned him,
and in defending him he was bound to use all fair arguments arising out
of the evidence. The speech of Phillips was a masterpiece of eloquence
under circumstances of extraordinary difficulty. Much of it was devoted
to impugning the veracity of the witnesses for the prosecution. He
solemnly declared that it was not his business to say who committed the
murder, and that he had no desire to throw any imputation on the other
servants in the house, and he abstained scrupulously from giving any
personal opinion on the matter; but the drift of his argument was that
Courvoisier was the victim of a conspiracy, the police having concealed
compromising articles among his clothes, and that there was no clear
circumstance distinguishing the suspicion against him from that against
the other servants.[39]
The conduct of Phillips in this case has, I believe, been justified by
the preponderance of professional opinion, though when the facts were
known public opinion outside the profession generally condemned it. Some
lawyers have pushed the duty of defence to a point which has aroused
much protest even in their own profession. 'The Advocate,' said Lord
Brougham in his great speech before the House of Lords in defence of
Queen Caroline, 'by the sacred duty which he owes his client, knows in
the discharge of that office but one person in the world--that client
and none other. To save that client by all expedient means, to protect
that client at all hazards and costs to all others, and among others to
himself, is the highest and most unquestioned of his duties; and he must
not regard the alarm, the suffering, the torment, the destruction which
he may bring upon any other. Nay, separating even the duties of a
patriot from those of an advocate, and casting them, if need be, to the
wind, he must go on, reckless of consequences, if his fate it should
unhappily be to involve his country in confusion for his client's
protection.'
This doctrine has been emphatically repudiated by some eminent English
lawyers, but both in practice and theory the profession have differed
widely in different courts, times and countries. How far, for example,
is it permissible in cross-examination to browbeat or confuse an honest
but timid and unskilful witness; to attempt to discredit the evidence of
a witness on a plain matter of fact about which he had no interest in
concealment by exhuming against him some moral scandal of early youth
which was totally unconnected with the subject of the trial; or, by
pursuing such a line of cross-examination, to keep out of the
witness-box material witnesses who are conscious that their past lives
are not beyond reproach? How far is it right or permissible to press
legal technicalities as opposed to substantial justice? Probably most
lawyers, if they are perfectly candid, will agree that these things are
in some measure inevitable in their profession, and that the real
question is one of degree, and therefore not susceptible of positive
definition. There is a kind of mind that grows so enamoured with the
subtleties and technicalities of the law that it delights in the
unexpected and unintended results to which they may lead. I have heard
an English judge say of another long deceased that he had through this
feeling a positive pleasure in injustice, and one lawyer, not of this
country, once confessed to me the amusement he derived from breaking the
convictions of criminals in his state by discovering technical flaws in
their indictments. There is a class of mind that delights in such cases
as that of the legal document which was invalidated because the letters
A.D. were put before the date instead of the formula 'in the year of Our
Lord,' or that of a swindler who was suffered to escape with his booty
because, in the writ that was issued for his arrest, by a copyist's
error the word 'sheriff' was written instead of 'sheriffs,' or that of a
lady who was deprived of an estate of £14,000 a year because by a mere
mistake of the conveyancer one material word was omitted from the will,
although the clearest possible evidence was offered showing the wishes
of the testator.[40] Such lawyers argue that in will cases 'the true
question is not what the testator intended to do, but what is the
meaning of the words of the will,' and that the balance of advantages is
in favour of a strict adherence to the construction of the sentence and
the technicalities of the law, even though in particular cases it may
lead to grave injustice.
It must indeed be acknowledged that up to a period extending far into
the nineteenth century those lawyers who adopted the most technical view
of their profession were acting fully in accordance with its spirit.
Few, if any, departments of English legislation and administration were
till near the middle of this century so scandalously bad as those
connected with the administration of the civil and the criminal law, and
especially with the Court of Chancery. The whole field was covered with
a network of obscure, intricate, archaic technicalities; useless except
for the purpose of piling up costs, procrastinating decisions, placing
the simplest legal processes wholly beyond the competence of any but
trained experts, giving endless facilities for fraud and for the evasion
or defeat of justice, turning a law case into a game in which chance and
skill had often vastly greater influence than substantial merits. Lord
Brougham probably in no degree exaggerated when he described great
portions of the English law as 'a two-edged sword in the hands of craft
and of oppression,' and a great authority on chancery law declared in
1839 that 'no man, as things now stand, can enter into a chancery suit
with any reasonable hope of being alive at its termination if he has a
determined adversary.'[41]
The moral difficulties of administering such a system were very great,
and in many cases English juries, in dealing with it, adopted a rough
and ready code of morals of their own. Though they had sworn to decide
every case according to the law as it was stated to them, and according
to the evidence that was laid before them, they frequently refused to
follow legal technicalities which would lead to substantial injustice,
and they still more frequently refused to bring in verdicts according to
evidence when by doing so they would consign a prisoner to a savage,
excessive, or unjust punishment. Some of the worst abuses of the English
law were mitigated by the perjuries of juries who refused to put them in
force.
The great legal reforms of the past half-century have removed most of
these abuses, and have at the same time introduced a wider and juster
spirit into the practical administration of the law. Yet even now
different judges sometimes differ widely in the importance they attach
to substantial justice and to legal technicalities; and even now one of
the advantages of trial by jury is that it brings the masculine common
sense and the unsophisticated sense of justice of unprofessional men
into fields that would otherwise be often distorted by ingenious
subtleties. It is, however, far less in the position of the judge than
in the position of an advocate that the most difficult moral questions
of the legal profession arise. The difference between an unscrupulous
advocate and an advocate who is governed by a high sense of honour and
morality is very manifest, but at best there must be many things in the
profession from which a very sensitive conscience would recoil, and
things must be said and done which can hardly be justified except on the
ground that the existence of this profession and the prescribed methods
of its action are in the long run indispensable to the honest
administration of justice.
The same method of reasoning applies to other great departments of
life. In politics it is especially needed. In free countries party
government is the best if not the only way of conducting public affairs,
but it is impossible to conduct it without a large amount of moral
compromise; without a frequent surrender of private judgment and will. A
good man will choose his party through disinterested motives, and with a
firm and honest conviction that it represents the cast of policy most
beneficial to the country. He will on grave occasions assert his
independence of party, but in the large majority of cases he must act
with his party even if they are pursuing courses in some degree contrary
to his own judgment.
Every one who is actively engaged in politics--every one especially who
is a member of the House of Commons--must soon learn that if the
absolute independence of individual judgment were pushed to its extreme,
political anarchy would ensue. The complete concurrence of a large
number of independent judgments in a complicated measure is impossible.
If party government is to be carried on, there must be, both in the
Cabinet and in Parliament, perpetual compromise. The first condition of
its success is that the Government should have a stable, permanent,
disciplined support behind it, and in order that this should be attained
the individual member must in most cases vote with his party. Sometimes
he must support a measure which he knows to be bad, because its
rejection would involve a change of government which he believes would
be a still greater evil than its acceptance, and in order to prevent
this evil he may have to vote a direct negative to some resolution
containing a statement which he believes to be true. At the same time,
if he is an honest man, he will not be a mere slave of party. Sometimes
a question arises which he considers so supremely important that he will
break away from his party and endeavour at all hazards to carry or to
defeat it. Much more frequently he will either abstain from voting, or
will vote against the Government on a particular question, but only when
he knows that by taking this course he is simply making a protest which
will produce no serious political complication. On most great measures
there is a dissentient minority in the Government party, and it often
exercises a most useful influence in representing independent opinion,
and bringing into the measure modifications and compromises which allay
opposition, gratify minorities, and soften differences. But the action
of that party will be governed by many motives other than a simple
consideration of the merits of the case. It is not sufficient to say
that they must vote for every resolution which they believe to be true,
for every bill or clause of a bill which they believe to be right, and
must vote against every bill or clause or resolution about which they
form an opposite judgment. Sometimes they will try in private to prevent
the introduction of a measure, but when it is introduced they will feel
it their duty either positively to support it or at least to abstain
from protesting against it. Sometimes they will either vote against it
or abstain from voting at all, but only when the majority is so large
that it is sure to be carried. Sometimes their conduct will be the
result of a bargain--they will vote for one portion of a bill of which
they disapprove because they have obtained from the Government a
concession on another which they think more important. The nature of
their opposition will depend largely upon the strength or weakness of
the Government, upon the size of the majority, upon the degree in which
a change of ministry would affect the general policy of the country,
upon the probability of the measure they object to being finally
extinguished, or returning in another year either in an improved or in a
more dangerous form. Questions of proportion and degree and ulterior
consequences will continually sway them. Measures are often opposed, not
on their own intrinsic merits, but on account of precedents they might
establish; of other measures which might grow out of them or be
justified by them.
Not unfrequently it happens that a section of the dominant party is
profoundly discontented with the policy of the Government on some
question which they deem of great importance. They find themselves
incapable of offering any direct and successful opposition, but their
discontent will show itself on some other Government measure on which
votes are more evenly divided. Possibly they may oppose that measure.
More probably they will fail to attend regularly at the divisions, or
will exercise their independent judgments on its clauses in a manner
they would not have done if their party allegiance had been unshaken.
And this conduct is not mere revenge. It is a method of putting pressure
on the Government in order to obtain concessions on matters which they
deem of paramount importance. In the same way they will seek to gain
supporters by political alliances. Few things in parliamentary
government are more dangerous or more apt to lead to corruption than
the bargains which the Americans call log-rolling; but it is inevitable
that a member who has received from a colleague, or perhaps from an
opponent, assistance on a question which he believes to be of the
highest importance, will be disposed to return that assistance in some
case in which his own feelings and opinions are not strongly enlisted.
Then, too, we have to consider the great place which obstruction plays
in parliamentary government. It constantly happens that a measure to
which scarcely any one objects is debated at inordinate length for no
other reason than to prevent a measure which is much objected to from
being discussed. Measures may be opposed by hostile votes, but they are
often much more efficaciously opposed by calculated delays, by
multiplied amendments or speeches, by some of the many devices that can
be employed to clog the legislative machine. There are large classes of
measures on which governments or parliaments think it desirable to give
no opinion, or at least no immediate opinion, though they cannot prevent
their introduction, and many methods are employed with the real, though
not avowed and ostensible object of preventing a vote or even a
ministerial declaration upon them. Sometimes Parliament is quite ready
to acknowledge the abstract justice of a proposal, but does not think it
ripe for legislation. In such cases the second reading of the bill will
probably be accepted, but, to the indignation and astonishment of its
supporters outside the House, it will be obstructed, delayed or defeated
in committee with the acquiescence, or connivance, or even actual
assistance of some of those who had voted for it. Some measures in the
eyes of some members involve questions of principle so sacred that they
will admit of no compromise of expediency, but most measures are deemed
open to compromise and are accepted, rejected, or modified under some of
the many motives I have described.
All this curious and indispensable mechanism of party government is
compatible with a high and genuine sense of public duty, and unless such
a sense at the last resort dominates over all other considerations,
political life will inevitably decline. At the same time it is obvious
that many things have to be done from which a very rigid and austere
nature would recoil. To support a Government when he believes it to be
wrong, or to oppose a measure which he believes to be right; to connive
at evasions which are mere pretexts, and at delays which rest upon
grounds that are not openly avowed,--is sometimes, and indeed not
unfrequently, a parliamentary duty. A member of Parliament must often
feel himself in the position of a private in an army, or a player in a
game, or an advocate in a law case. On many questions each party
represents and defends the special interests of some particular classes
in the country. When there are two plausible alternative courses to be
pursued which divide public opinion, the Opposition is almost bound by
its position to enforce the merits of the course opposed to that adopted
by the Government. In theory nothing could seem more absurd than a
system of government in which, as it has been said, the ablest men in
Parliament are divided into two classes, one side being charged with the
duty of carrying on the government and the other with that of
obstructing and opposing them in their task, and in which, on a vast
multitude of unconnected questions, these two great bodies of very
competent men, with the same facts and arguments before them, habitually
go into opposite lobbies. In practice, however, parliamentary government
by great parties, in countries where it is fully understood and
practised, is found to be admirably efficacious in representing every
variety of political opinion; in securing a constant supervision and
criticism of men and measures; and in forming a safety valve through
which the dangerous humours of society can expand without evil to the
community.
This, however, is only accomplished by constant compromises which are
seldom successfully carried out without a long national experience.
Party must exist. It must be maintained as an essential condition of
good government, but it must be subordinated to the public interests,
and in the public interests it must be in many cases suspended. There
are subjects which cannot be introduced without the gravest danger into
the arena of party controversy. Indian politics are a conspicuous
example, and, although foreign policy cannot be kept wholly outside it,
the dangers connected with its party treatment are extremely great. Many
measures of a different kind are conducted with the concurrence of the
two front benches. A cordial union on large classes of questions between
the heads of the rival parties is one of the first conditions of
successful parliamentary government. The Opposition leader must have a
voice in the conduct of business, on the questions that should be
brought forward, and on the questions that it is for the public interest
to keep back. He is the official leader of systematic, organised
opposition to the Government, yet he is on a large number of questions
their most powerful ally. He must frequently have confidential relations
with them, and one of his most useful functions is to prevent sections
of his party from endeavouring to snatch party advantages by courses
which might endanger public interests. If the country is to be well
governed there must be a large amount of continuity in its policy;
certain conditions and principles of administration must be inflexibly
maintained, and in great national emergencies all parties must unite.
In questions which lie at the heart of party politics, also some amount
of compromise is usually effected. Debate not only elicits opinions but
also suggests alternatives and compromises, and very few measures are
carried by a majority which do not bear clear traces of the action of
the minority. The line is constantly deflected now on one side and now
on the other, and (usually without much regard to logical consistency)
various and opposing sentiments are in some measure gratified. If the
lines of party are drawn with an inflexible rigidity; and if the
majority insist on the full exercise of their powers, parliamentary
government may become a despotism as crushing as the worst autocracy--a
despotism which is perhaps even more dangerous as the sense of
responsibility is diminished by being divided. If, on the other hand,
the latitude conceded to individual opinion is excessive, Parliament
inevitably breaks into groups, and parliamentary government loses much
of its virtue. When coalitions of minorities can at any time overthrow a
ministry, the whole force of Government is lost. The temptation to
corrupt bargains with particular sections is enormously increased, and
the declining control of the two front benches will be speedily followed
by a diminished sense of responsibility, and by the increased influence
of violent, eccentric, exaggerated opinions. It is of the utmost moment
that the policy of an Opposition should be guided by its most important
men, and especially by men who have had the experience and the
responsibility of office, and who know that they may have that
responsibility again. But the healthy latitude of individual opinion and
expression in a party is like most of those things we are now
considering, a question of degree, and not susceptible of clear and
sharp definition.
Other questions of a somewhat different nature, but involving grave
moral considerations, arise out of the relations between a member and
his constituents. In the days when small boroughs were openly bought in
the market, this was sometimes defended on the ground of the complete
independence of judgment which it gave to the purchasing member. Romilly
and Henry Flood are said to have both purchased their seats with the
express object of securing such independence. In the political
philosophy of Burke, no doctrine is more emphatically enforced than that
a member of Parliament is a representative but not a delegate; that he
owes to his constituents not only his time and his services, but also
the exercise of his independent and unfettered judgment; that, while
reflecting the general cast of their politics, he must never suffer
himself to be reduced to a mere mouthpiece, or accept binding
instructions prescribing on each particular measure the course he may
pursue; that after his election he must consider himself a member of an
Imperial Parliament rather than the representative of a particular
locality, and must subordinate local and special interests to the wider
and more general interests of the whole nation.
The conditions of modern political life have greatly narrowed this
liberty of judgment. In most constituencies a member can only enter
Parliament fettered by many pledges relating to specific measures, and
in every turn of policy sections of his constituents will attempt to
dictate his course of action. Certain large and general pledges
naturally and properly precede his election. He is chosen as a supporter
or opponent of the Government; he avows himself an adherent of certain
broad lines of policy, and he also represents in a special degree the
interests and the distinctive type of opinion of the class or industry
which is dominant in his constituency. But even at the time of election
he often finds that on some particular question in which his electors
are much interested he differs from them, though they consent, in spite
of it, to elect him; and, in the course of a long Parliament, others are
very apt unexpectedly to arise. Political changes take place which bring
into the foreground matters which at the time of the election seemed
very remote, or produce new questions, or give rise to unforeseen party
combinations, developments, and tendencies. It will often happen that on
these occasions a member will think differently from the majority of his
electors, and he must meet the question how far he must sacrifice his
judgment to theirs, and how far he may use the influence which their
votes have given him to act in opposition to their wishes and perhaps
even to their interests. Burke, for example, found himself in this
position when, being member for Bristol, he considered it his duty to
support the concession of Free-trade to Ireland, although his
constituents had, or thought they had, a strong interest in commercial
restrictions and monopoly. In our own day it has happened that members
representing manufacturing districts of Lancashire have found themselves
unexpectedly called upon to vote upon some measure for crippling or
extending rival manufactures in India; for opening new markets by some
very dubious aggression in a distant land; or for limiting the child
labour employed in the local manufacture; and these members have often
believed that the right course was a course which was exceedingly
repugnant to great sections of their electors.
Sometimes, too, a member is elected on purely secular issues, but in the
course of the Parliament one of those fierce, sudden storms of religious
sentiment, to which England is occasionally liable, sweeps over the
land, and he finds himself wholly out of sympathy with a great portion
of his constituency. In other cases the party which he entered
Parliament to support, pursues, on some grave question, a line of policy
which he believes to be seriously wrong, and he goes into partial or
even complete and bitter opposition. Differences of this kind have
frequently arisen when there is no question of any interested motive
having influenced the member. Sometimes in such cases he has resigned
his seat and gone to his electors for re-election. In other cases he
remains in Parliament till the next election. Each case, however, must
be left to individual judgment, and no clear, definite, unwavering moral
line can be drawn. The member will consider the magnitude of the
disputed question, both in his own eyes and in the eyes of those whom he
represents; its permanent or transitory character, the amount and
importance of the majority opposed to his views, the length of time that
is likely to elapse before a dissolution will bring him face to face
with his constituents. In matters which he does not consider very urgent
or important, he will probably sacrifice his own judgment to that of his
electors, at least so far as to abstain from voting or from pressing his
own views. In graver matters it is his duty boldly to face unpopularity,
or perhaps even take the extreme step of resigning his seat.
The cases in which a member of Parliament finds it his duty to support a
measure which he believes to be positively bad, on the ground that
greater evils would follow its rejection, are happily not very numerous.
He can extricate himself from many moral difficulties by sometimes
abstaining from voting or from the expression of his real opinions, and
most measures are of a composite character in which good and evil
elements combine, and may in some degree be separated. In such measures
it is often possible to accept the general principle while opposing
particular details, and there is considerable scope for compromise and
modification. But the cases in which a member of Parliament is compelled
to vote for measures about which he has no real knowledge or conviction
are very many. Crowds of measures of a highly complex and technical
character, affecting departments of life with which he has had no
experience, relating to the multitudinous industries, interests and
conditions of a great people, are brought before him at very short
notice; and no intellect, however powerful, no industry, however great,
can master them. It is utterly impossible that mere extemporised
knowledge, the listening to a short debate, the brief study which a
member of Parliament can give to a new subject, can place him on a real
level of competence with those who can bring to it a lifelong knowledge
or experience.
A member of Parliament will soon find that he must select a class of
subjects which he can himself master, while on many others he must vote
blindly with his party. The two or three capital measures in a session
are debated with such a fulness that both the House and the country
become thoroughly competent to judge them, and in those cases the
preponderance of argument will have great weight. A powerful ministry
and a strongly organised party may carry such a measure in spite of it,
but they will be obliged to accept amendments and modifications, and if
they persist in their policy their position both in the House and in the
country will sooner or later be inevitably changed. But a large number
of measures have a more restricted interest, and are far less widely
understood. The House of Commons is rich in expert knowledge, and few
subjects are brought before it which some of its members do not
thoroughly understand; but in a vast number of cases the majority who
decide the question are obliged to do so on the most superficial
knowledge. Very often it is physically impossible for a member to obtain
the knowledge he requires. The most important and detailed investigation
has taken place in a committee upstairs to which he did not belong, or
he is detained elsewhere on important parliamentary business while the
debate is going on. Even when this is not the case, scarcely any one
has the physical or mental power which would enable him to sit
intelligently through all the debates. Every member of Parliament is
familiar with the scene, when, after a debate, carried on before nearly
empty benches, the division bell rings, and the members stream in to
decide the issue. There is a moment of uncertainty. The questions 'Which
side are we?' 'What is it about?' may be heard again and again. Then the
Speaker rises, and with one magical sentence clears the situation. It is
the sentence in which he announces that the tellers for the Ayes or
Noes, as the case may be, are the Government whips. It is not argument,
it is not eloquence, it is this single sentence which in countless cases
determines the result and moulds the legislation of the country. Many
members, it is true, are not present in the division lobby, but they are
usually paired--that is to say, they have taken their sides before the
discussion began; perhaps without even knowing what subject is to be
discussed, perhaps for all the many foreseen and unforeseen questions
that may arise during long periods of the session.
It is a strange process, and to a new member who has been endeavouring
through his life to weigh arguments and evidence with scrupulous care,
and treat the formation and expression of opinions as a matter of
serious duty, it is at first very painful. He finds that he is required
again and again to give an effective voice in the great council of the
nation, on questions of grave importance, with a levity of conviction
upon which he would not act in the most trivial affairs of private life.
No doctor would prescribe for the slightest malady; no lawyer would
advise in the easiest case; no wise man would act in the simplest
transactions of private business, or would even give an opinion to his
neighbour at a dinner party without more knowledge of the subject than
that on which a member of Parliament is often obliged to vote. But he
soon finds that for good or evil this system is absolutely indispensable
to the working of the machine. If no one voted except on matters he
really understood and cared for, four-fifths of the questions that are
determined by the House of Commons would be determined by mere fractions
of its members, and in that case parliamentary government under the
party system would be impossible. The stable, disciplined majorities
without which it can never be efficiently conducted would be at an end.
Those who refuse to accept the conditions of parliamentary life should
abstain from entering into it.
It is obvious that the one justification of this system is to be found
in the belief that parliamentary government, as it is worked in England,
is on the whole a good thing, and that this is the indispensable
condition of its existence. Probably also with most men it strengthens
the disposition to support the Government on matters which they do not
understand and in which grave party issues are not involved. They know
that these minor questions have at least been carefully examined on
their merits by responsible men, and with the assistance of the best
available expert knowledge.
This fact goes far to reconcile us to the tendency to give governments
an almost complete monopoly in the initiation of legislation which is so
evident in modern parliamentary life. Much useful legislation in the
past has been due to private and independent members, but the chance of
bills introduced by such members ever becoming law is steadily
diminishing. This is not due to any recognised constitutional change,
but to the constantly increasing pressure of government business on the
time of the House, and especially to what is called the twelve o'clock
rule, terminating debates at midnight.
It is a rule which is manifestly wise, for it limits on ordinary
occasions the hours of parliamentary work to a period within the
strength of an average man. Parliamentary government has many dubious
aspects, but it never appears worse than in the cases which may still
sometimes be seen when a Government thinks fit to force through an
important measure by all-night sittings, and when a weary and irritated
House which has been sitting since three or four in the afternoon is
called upon at a corresponding hour of the early morning to pronounce
upon grave and difficult questions of principle, and to deal with the
serious interests of large classes. The utter and most natural
incapacity of the House at such an hour for sustained argument; its
anxiety that each successive amendment should be despatched in five
minutes; the readiness with which in that tired, feverish atmosphere,
surprises and coalitions may be effected and solutions accepted, to
which the House in its normal state would scarcely have listened, must
be evident to every observer. Scenes of this kind are among the greatest
scandals of Parliament, and the rule which makes them impossible except
in the closing weeks of the Session has been one of the greatest
improvements in modern parliamentary work. But its drawback is that it
has greatly limited the possibility of private member legislation. It is
in late and rapid sittings that most measures of this kind passed
through their final stages, and since the twelve o'clock rule has been
adopted a much smaller number of bills introduced by private members
find their way to the statute book.
FOOTNOTES:
[35] O'Brien, _The Lawyer_, pp. 169, 170.
[36] _Dictionnaire de Cas de Conscience_, Art. 'Avocat;' Migne,
_Encyclopédie Théologique_, i. serie, tome xviii.
[37] _Revue de Droit International_, xxi. 615.
[38] See Sir James Stephen's _General View of the Criminal Law of
England_, pp. 167, 168.
[39] Phillips's defence of his own conduct will be found in a pamphlet
called 'Correspondence of S. Warren and C. Phillips relating to the
Courvoisier trial.' It has often been said that Phillips had asserted in
his speech his full belief in the innocence of his client, but this is
disproved by the statement of C. J. Tindal, who tried the case, and of
Baron Parke, who sat on the bench. C. J. Denman also pronounced
Phillips's speech to be unexceptionable. An able and interesting article
on this case by Mr. Atlay will be found in the _Cornhill Magazine_, May,
1897.
[40] See these cases in Warren's _Social and Professional Duties of an
Attorney_, pp. 128-133, 195, 196.
[41] See the admirable article by Lord Justice Bowen on 'The
Administration of the Law' in Ward's _Reign of Queen Victoria_, vol. i.