CHAPTER IX

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.

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