With regard to the other question which I have mentioned, the question

of Parliamentary Reform, I think that the time is at hand when that

question will require the gravest consideration, when it will be

necessary to reconsider the Reform Act of 1832, and to amend it

temperately and cautiously, but in a large and liberal spirit. I confess

that, in my opinion, this revision cannot be made with advantage, except

by the Ministers of the Crown. I greatly doubt whether it will be found

possible to carry through any plan of improvement if we have not the

Government heartily with us; and I must say that from the present

Administration I can, as to that matter, expect nothing good. What

precisely I am to expect from them I do not know, whether the most

obstinate opposition to every change, or the most insanely violent

change. If I look to their conduct, I find the gravest reasons for

apprehending that they may at one time resist the most just demands,

and at another time, from the merest caprice, propose the wildest

innovations. And I will tell you why I entertain this opinion. I am

sorry that, in doing so, I must mention the name of a gentleman for

whom, personally, I have the highest respect; I mean Mr Walpole, the

Secretary of State for the Home Department. My own acquaintance with him

is slight; but I know him well by character; and I believe him to be

an honourable, an excellent, an able man. No man is more esteemed in

private life: but of his public conduct I must claim the right to speak

with freedom; and I do so with the less scruple because he has himself

set me an example of that freedom, and because I am really now standing

on the defensive. Mr Walpole lately made a speech to the electors of

Midhurst; and in that speech he spoke personally of Lord John Russell

as one honourable man should speak of another, and as, I am sure, I

wish always to speak of Mr Walpole. But in Lord John's public conduct Mr

Walpole found many faults. Chief among those faults was this, that

his lordship had re-opened the question of reform. Mr Walpole declared

himself to be opposed on principle to organic change. He justly said

that if, unfortunately, organic change should be necessary, whatever

was done ought to be done with much deliberation and with caution almost

timorous; and he charged Lord John with having neglected these plain

rules of prudence. I was perfectly thunderstruck when I read the speech:

for I could not but recollect that the most violent and democratic

change that ever was proposed within the memory of the oldest man had

been proposed but a few weeks before by this same Mr Walpole, as the

organ of the present Government. Do you remember the history of the

Militia Bill? In general, when a great change in our institutions is

to be proposed from the Treasury Bench, the Minister announces his

intention some weeks before. There is a great attendance: there is

the most painful anxiety to know what he is going to recommend. I well

remember,--for I was present,--with what breathless suspense six hundred

persons waited, on the first of March, 1831, to hear Lord John Russell

explain the principles of his Reform Bill. But what was his Reform Bill

to the Reform Bill of the Derby Administration? At the end of a night,

in the coolest way possible, without the smallest notice, Mr Walpole

proposed to add to the tail of the Militia Bill a clause to the effect,

that every man who had served in the militia for two years should have

a vote for the county. What is the number of those voters who were to be

entitled to vote in this way for counties? The militia of England is to

consist of eighty thousand men; and the term of service is to be five

years. In ten years the number will be one hundred and sixty thousand;

in twenty years, three hundred and twenty thousand; and in twenty-five

years, four hundred thousand. Some of these new electors will, of

course, die off in twenty-five years, though the lives are picked lives,

remarkably good lives. What the mortality is likely to be I do not

accurately know; but any actuary will easily calculate it for you. I

should say, in round numbers, that you will have, when the system has

been in operation for a generation, an addition of about three hundred

thousand to the county constituent bodies; that is to say, six thousand

voters on the average will be added to every county in England

and Wales. That is surely an immense addition. And what is the

qualification? Why, the first qualification is youth. These electors

are not to be above a certain age; but the nearer you can get them to

eighteen the better. The second qualification is poverty. The elector

is to be a person to whom a shilling a-day is an object. The third

qualification is ignorance; for I venture to say that, if you take the

trouble to observe the appearance of those young fellows who follow the

recruiting sergeant in the streets, you will at once say that, among our

labouring classes, they are not the most educated, they are not the

most intelligent. That they are brave, stout lads, I fully believe. Lord

Hardinge tells me that he never saw a finer set of young men; and I have

not the slightest doubt that, if necessary, after a few weeks' training,

they will be found standing up for our firesides against the best

disciplined soldiers that the Continent can produce. But these are not

the qualifications which fit men to choose legislators. A young man who

goes from the ploughtail into the army is generally rather thoughtless

and disposed to idleness. Oh! but there is another qualification which I

had forgotten: the voter must be five feet two. There is a qualification

for you! Only think of measuring a man for the franchise! And this is

the work of a Conservative Government, this plan which would swamp all

the counties in England with electors who possess the Derby-Walpole

qualifications; that is to say, youth, poverty, ignorance, a roving

disposition, and five feet two. Why, what right have people who have

proposed such a change as this to talk about--I do not say Lord John

Russell's imprudence--but the imprudence of Ernest Jones or of any other

Chartist? The Chartists, to do them justice, would give the franchise to

wealth as well as to poverty, to knowledge as well as to ignorance, to

mature age as well as to youth. But to make a qualification compounded

of disqualifications is a feat of which the whole glory belongs to our

Conservative rulers. This astounding proposition was made, I believe, in

a very thin House: but the next day the House was full enough, everybody

having come down to know what was going to happen. One asked, why not

this? and another, why not that? Are all the regular troops to have

the franchise? all the policemen? all the sailors? for, if you give the

franchise to ploughboys of twenty-one, what class of honest Englishmen

and Scotchmen can you with decency exclude? But up gets the Home

Secretary, and informs the House that the plan had not been sufficiently

considered, that some of his colleagues were not satisfied, and that

he would not press his proposition. Now, if it had happened to me to

propose such a reform at one sitting of the House, and at the next

sitting to withdraw it, because it had not been well considered, I do

think that, to the end of my life, I never should have talked about the

exceeding imprudence of reopening the question of reform; I should never

have ventured to read any other man a lecture about the caution with

which all plans of organic change ought to be framed. I repeat that,

if I am to judge from the language of the present Ministers, taken in

connection with this solitary instance of their legislative skill in the

way of reform, I am utterly at a loss what to expect. On the whole, what

I do expect is that they will offer a pertinacious, vehement, provoking

opposition to safe and reasonable change, and that then, in some moment

of fear or caprice, they will bring in, and fling on the table, in a

fit of desperation or levity, some plan which will loosen the very

foundations of society.

For my own part, I think that the question of Parliamentary Reform is

one which must soon be taken up; but it ought to be taken up by the

Government; and I hope, before long, to see in office a Ministry which

will take it up in earnest. I dare say that you will not suspect me of

saying so from any interested feeling. In no case whatever shall I again

be a member of any Ministry. During what may remain of my public life,

I shall be the servant of none but you. I have nothing to ask of any

government, except that protection which every government owes to a

faithful and loyal subject of the Queen. But I do hope to see in office

before long a Ministry which will treat this great question as it

should be treated. It will be the duty of that Ministry to revise the

distribution of power. It will be the duty of that Ministry to consider

whether small constituent bodies, notoriously corrupt, and proved to

be corrupt, such, for example, as Harwich, ought to retain the power of

sending members to Parliament. It will be the duty of such a Ministry

to consider whether small constituent bodies, even less notoriously

corrupt, ought to have, in the counsels of the empire, a share as great

as that of the West Riding of York, and twice as great as that of the

county of Perth. It will be the duty of such a Ministry to consider

whether it may not be possible, without the smallest danger to peace,

law, and order, to extend the elective franchise to classes of the

community which do not now possess it. As to universal suffrage, on that

subject you already know my opinions; and I now come before you with

those opinions strengthened by everything which, since I last professed

them, has passed in Europe. We now know, by the clearest of all proofs,

that universal suffrage, even united with secret voting, is no security

against the establishment of arbitrary power. But, Gentlemen, I do look

forward, and at no very remote period, to an extension of the franchise,

such as I once thought unsafe. I believe that such an extension will,

by the course of events, be brought about in the very best and happiest

way. Perhaps I may be sanguine: but I think that good times are coming

for the labouring classes of this country. I do not entertain that hope

because I expect that Fourierism, or Saint Simonianism, or Socialism, or

any of those other "isms" for which the plain English word is "robbery,"

will prevail. I know that such schemes only aggravate the misery which

they pretend to relieve. I know that it is possible, by legislation, to

make the rich poor, but that it is utterly impossible to make the poor

rich. But I believe that the progress of experimental science, the

free intercourse of nation with nation, the unrestricted influx of

commodities from countries where they are cheap, and the unrestricted

efflux of labour towards countries where it is dear, will soon produce,

nay, I believe that they are beginning to produce, a great and most

blessed social revolution. I need not tell you, Gentlemen, that in those

colonies which have been planted by our race,--and, when I speak of our

colonies I speak as well of those which have separated from us as of

those which still remain united to us,--I need not tell you that in

our colonies the condition of the labouring man has long been far more

prosperous than in any part of the Old World. And why is this? Some

people tell you that the inhabitants of Pennsylvania and New England

are better off than the inhabitants of the Old World, because the

United States have a republican form of government. But we know that the

inhabitants of Pennsylvania and New England were more prosperous than

the inhabitants of the Old World when Pennsylvania and New England were

as loyal as any part of the dominions of George the First, George the

Second, and George the Third; and we know that in Van Diemen's Land, in

New Zealand, in Australasia, in New Brunswick, in Canada, the subjects

of Her Majesty are as prosperous as they could be under the government

of a President. The real cause is that, in these new countries, where

there is a boundless extent of fertile land, nothing is easier than for

the labourer to pass from the place which is overstocked with labour to

the place which is understocked; and that thus both he who moves and he

who stays always have enough. This it is which keeps up the prosperity

of the Atlantic States of the Union. They pour their population back to

the Ohio, across the Ohio to the Mississippi, and beyond the Mississippi

to the Rocky Mountains. Everywhere the desert is receding before the

advancing flood of human life and civilisation; and, in the meantime,

those who are left behind enjoy abundance, and never endure such

privations as in old countries too often befall the labouring classes.

And why has not the condition of our labourers been equally fortunate?

Simply, as I believe, on account of the great distance which separates

our country from the new and unoccupied part of the world, and on

account of the expense of traversing that distance. Science, however,

has abridged, and is abridging, that distance: science has diminished,

and is diminishing, that expense. Already New Zealand is, for all

practical purposes, nearer to us than New England was to the Puritans

who fled thither from the tyranny of Laud. Already the ports of North

America, Halifax, Boston, and New York, are nearer to us than, within

the memory of persons now living, the Island of Skye and the county of

Donegal were to London. Already emigration is beginning to produce the

same effect here which it has produced on the Atlantic States of

the Union. And do not imagine that our countryman who goes abroad is

altogether lost to us. Even if he goes from under the dominion of the

British Queen and the protection of the British flag he will still,

under the benignant system of free trade, continue to be bound to us by

close ties. If he ceases to be a neighbour, he is still a benefactor

and a customer. Go where he may, if you will but maintain that system

inviolate, it is for us that he is turning the forests into cornfields

on the banks of the Mississippi; it is for us that he is tending his

sheep and preparing his fleeces in the heart of Australasia; and in

the meantime it is from us that he receives those commodities which are

produced with most advantage in old societies, where great masses of

capital have been accumulated. His candlesticks and his pots and his

pans come from Birmingham; his knives from Sheffield; the light cotton

jacket which he wears in summer from Manchester; the good cloth coat

which he wears in winter from Leeds; and in return he sends us back,

from what was lately a wilderness, the good flour out of which is made

the large loaf which the British labourer divides among his children. I

believe that it is in these changes that we shall see the best solution

of the question of the franchise. We shall make our institutions more

democratic than they are, not by lowering the franchise to the level of

the great mass of the community, but by raising, in a time which will be

very short when compared with the existence of a nation, the great mass

up to the level of the franchise.

I feel that I must stop. I had meant to advert to some other subjects.

I had meant to say something about the ballot, to which, as you know, I

have always been favourable; something about triennial parliaments, to

which, as you know, I have always been honestly opposed; something about

your university tests; something about the cry for religious equality

which has lately been raised in Ireland; but I feel that I cannot well

proceed. I have only strength to thank you again, from the very bottom

of my heart, for the great honour which you have done me in choosing me,

without solicitation, to represent you in Parliament. I am proud of our

connection; and I shall try to act in such a manner that you may not be

ashamed of it.

*****

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

DELIVERED IN THE HOUSE OF COMMONS ON THE 1ST OF JUNE 1853.

On the first of June 1853, Lord Hotham, Member for Kent, moved the third

reading of a bill of which the chief object was to make the Master

of the Rolls incapable of sitting in the House of Commons. Mr Henry

Drummond, Member for Surrey, moved that the bill should be read a third

time that day six months. In support of Mr Drummond's amendment the

following Speech was made.

The amendment was carried by 224 votes to 123.

I cannot, Sir, suffer the House to proceed to a division without

expressing the very strong opinion which I have formed on this subject.

I shall give my vote, with all my heart and soul, for the amendment

moved by my honourable friend the Member for Surrey. I never gave a vote

in my life with a more entire confidence that I was in the right; and I

cannot but think it discreditable to us that a bill for which there is

so little to be said, and against which there is so much to be said,

should have been permitted to pass through so many stages without a

division.

On what grounds, Sir, does the noble lord, the Member for Kent, ask

us to make this change in the law? The only ground, surely, on which

a Conservative legislator ought ever to propose a change in the law is

this, that the law, as it stands, has produced some evil. Is it then

pretended that the law, as it stands, has produced any evil? The noble

lord himself tells you that it has produced no evil whatever. Nor can

it be said that the experiment has not been fairly tried. This House and

the office of Master of the Rolls began to exist, probably in the same

generation, certainly in the same century. During six hundred years this

House has been open to Masters of the Rolls. Many Masters of the Rolls

have sate here, and have taken part, with great ability and authority,

in our deliberations. To go no further back than the accession of the

House of Hanover, Jekyll was a member of this House, and Strange, and

Kenyon, and Pepper Arden, and Sir William Grant, and Sir John Copley,

and Sir Charles Pepys, and finally Sir John Romilly. It is not even

pretended that any one of these eminent persons was ever, on any single

occasion, found to be the worse member of this House for being Master of

the Rolls, or the worse Master of the Rolls for being a member of this

House. And if so, is it, I ask, the part of a wise statesman, is it, I

ask still more emphatically, the part of a Conservative statesman, to

alter a system which has lasted six centuries, and which has never

once, during all those centuries, produced any but good effects, merely

because it is not in harmony with an abstract principle?

And what is the abstract principle for the sake of which we are asked to

innovate in reckless defiance of all the teaching of experience? It is

this; that political functions ought to be kept distinct from judicial

functions. So sacred, it seems, is this principle, that the union of the

political and judicial characters ought not to be suffered to continue

even in a case in which that union has lasted through many ages without

producing the smallest practical inconvenience. "Nothing is so hateful,"

I quote the words of the noble lord who brought in this bill, "nothing

is so hateful as a political judge."

Now, Sir, if I assent to the principle laid down by the noble lord, I

must pronounce his bill the most imbecile, the most pitiful, attempt at

reform that ever was made. The noble lord is a homoeopathist in state

medicine. His remedies are administered in infinitesimal doses. If he

will, for a moment, consider how our tribunals are constituted, and how

our parliament is constituted, he will perceive that the judicial

and political character are, through all grades, everywhere combined,

everywhere interwoven, and that therefore the evil which he proposes

to remove vanishes, as the mathematicians say, when compared with the

immense mass of evil which he leaves behind.

It has been asked, and very sensibly asked, why, if you exclude the

Master of the Rolls from the House, you should not also exclude the

Recorder of the City of London. I should be very sorry to see the

Recorder of the City of London excluded. But I must say that the reasons

for excluding him are ten times as strong as the reasons for excluding

the Master of the Rolls. For it is well-known that political cases

of the highest importance have been tried by Recorders of the City of

London. But why not exclude all Recorders, and all Chairmen of Quarter

Sessions? I venture to say that there are far stronger reasons for

excluding a Chairman of Quarter Sessions than for excluding a Master of

the Rolls. I long ago attended, during two or three years, the Quarter

Sessions of a great county. There I constantly saw in the chair an

eminent member of this House. An excellent criminal judge he was. Had

he been a veteran lawyer, he could hardly have tried causes more

satisfactorily or more expeditiously. But he was a keen politician: he

had made a motion which had turned out a Government; and when he died

he was a Cabinet Minister. Yet this gentleman, the head of the Blue

interest, as it was called, in his county, might have had to try men of

the Orange party for rioting at a contested election. He voted for the

corn laws; and he might have had to try men for breaches of the peace

which had originated in the discontent caused by the corn laws. He was,

as I well remember, hooted, and, I rather think, pelted too, by the mob

of London for his conduct towards Queen Caroline; and, when he went

down to his county, he might have had to sit in judgment on people

for breaking windows which had not been illuminated in honour of Her

Majesty's victory. This is not a solitary instance. There are, I dare

say, in this House, fifty Chairmen of Quarter Sessions. And this is an

union of judicial and political functions against which there is really

much to be said. For it is important, not only that the administration

of justice should be pure, but that it should be unsuspected. Now I

am willing to believe that the administration of justice by the unpaid

magistrates in political cases is pure: but unsuspected it certainly is

not. It is notorious that, in times of political excitement, the cry

of the whole democratic press always is that a poor man, who has been

driven by distress to outrage, has far harder measure at the Quarter

Sessions than at the Assizes. So loud was this cry in 1819 that Mr

Canning, in one of his most eloquent speeches, pronounced it the most

alarming of all the signs of the times. See then how extravagantly, how

ludicrously inconsistent your legislation is. You lay down the principle

that the union of political functions and judicial functions is a

hateful abuse. That abuse you determine to remove. You accordingly leave

in this House a crowd of judges who, in troubled times, have to try

persons charged with political offences; of judges who have often

been accused, truly or falsely, of carrying to the judgment seat their

political sympathies and antipathies; and you shut out of the house a

single judge, whose duties are of such a nature that it has never once,

since the time of Edward the First, been even suspected that he or any

of his predecessors has, in the administration of justice, favoured a

political ally, or wronged a political opponent.

But even if I were to admit, what I altogether deny, that there is

something in the functions of the Master of the Rolls which makes it

peculiarly desirable that he should not take any part in politics,

I should still vote against this bill, as most inconsistent and

inefficient. If you think that he ought to be excluded from political

assemblies, why do not you exclude him? You do no such thing. You

exclude him from the House of Commons, but you leave the House of Lords

open to him. Is not the House of Lords a political assembly? And is it

not certain that, during several generations, judges have generally had

a great ascendency in the House of Lords? A hundred years ago a

great judge, Lord Hardwicke, possessed an immense influence there. He

bequeathed his power to another great judge, Lord Mansfield. When age

had impaired the vigour of Lord Mansfield, the authority which he had,

during many years, enjoyed, passed to a third judge, Lord Thurlow.

Everybody knows what a dominion that eminent judge, Lord Eldon,

exercised over the peers, what a share he took in making and unmaking

ministries, with what idolatrous veneration he was regarded by one great

party in the State, with what dread and aversion he was regarded by the

other. When the long reign of Lord Eldon had terminated, other judges,

Whig and Tory, appeared at the head of contending factions. Some of us

can well remember the first ten days of October, 1831. Who, indeed, that

lived through those days can ever forget them? It was the most exciting,

the most alarming political conjuncture of my time. On the morning of

the eighth of October, the Reform Bill, after a discussion which had

lasted through many nights, was rejected by the Lords. God forbid that

I should again see such a crisis! I can never hope again to hear such

a debate. It was indeed a splendid display of various talents and

acquirements. There are, I dare say, some here who, like myself, watched

through the last night of that conflict till the late autumnal dawn,

sometimes walking up and down the long gallery, sometimes squeezing

ourselves in behind the throne, or below the bar, to catch the eloquence

of the great orators who, on that great occasion, surpassed themselves.

There I saw, in the foremost ranks, confronting each other, two judges,

on one side Lord Brougham, Chancellor of the realm, on the other Lord

Lyndhurst, Chief Baron of the Exchequer. How eagerly we hung on their

words! How eagerly those words were read before noon by hundreds of

thousands in the capital, and within forty-eight hours, by millions

in every part of the kingdom! With what a burst of popular fury

the decision of the House was received by the nation! The ruins of

Nottingham Castle, the ruins of whole streets and squares at Bristol,

proved but too well to what a point the public feeling had been wound

up. If it be true that nothing is so hateful to the noble lord, the

Member for Kent, as a judge who takes part in political contentions, why

does he not bring in a bill to prevent judges from entering those lists

in which Lord Brougham and Lord Lyndhurst then encountered each other?

But no: the noble lord is perfectly willing to leave those lists open to

the Master of the Rolls. The noble lord's objection is not to the union

of the judicial character and the political character. He is quite

willing that anywhere but here judges should be politicians. The Master

of the Rolls may be the soul of a great party, the head of a great

party, the favourite tribune of a stormy democracy, the chief spokesman

of a haughty aristocracy. He may do all that declamation and sophistry

can do to inflame the passions or mislead the judgment of a senate. But

it must not be in this room. He must go a hundred and fifty yards hence.

He must sit on a red bench, and not on a green one. He must say, "My

Lords," and not "Mr Speaker." He must say, "Content," and not "Aye."

And then he may, without at all shocking the noble lord, be the most

stirring politician in the kingdom.

But I am understating my case. I am greatly understating it. For, Sir,

this union of the judicial character and the political character, in

Members of the other House of Parliament, is not a merely accidental

union. Not only may judges be made peers; but all the peers are

necessarily judges. Surely when the noble lord told us that the union

of political functions and of judicial functions was the most hateful of

all things, he must have forgotten that, by the fundamental laws of the

realm, a political assembly is the supreme court of appeal, the court

which finally confirms or annuls the judgments of the courts, both of

common law and of equity, at Westminster, of the courts of Scotland, of

the courts of Ireland, of this very Master of the Rolls about whom we

are debating. Surely, if the noble lord's principle be a sound one, it

is not with the Master of the Rolls but with the House of Peers that we

ought to begin. For, beyond all dispute, it is more important that the

court above should be constituted on sound principles than that the

court below should be so constituted. If the Master of the Rolls goes

wrong, the House of Peers may correct his errors. But who is to correct

the errors of the House of Peers? All these considerations the noble

lord overlooks. He is quite willing that the peers shall sit in the

morning as judges, shall determine questions affecting the property, the

liberty, the character of the Queen's subjects, shall determine those

questions in the last resort, shall overrule the decisions of all the

other tribunals in the country; and that then, in the afternoon,

these same noble persons shall meet as politicians, and shall debate,

sometimes rather sharply, sometimes in a style which we dare not imitate

for fear that you, Sir, should call us to order, about the Canadian

Clergy Reserves, the Irish National Schools, the Disabilities of the

Jews, the Government of India. I do not blame the noble lord for not

attempting to alter this state of things. We cannot alter it, I know,

without taking up the foundations of our constitution. But is it not

absurd, while we live under such a constitution, while, throughout

our whole system from top to bottom, political functions and judicial

functions are combined, to single out, not on any special ground, but

merely at random, one judge from a crowd of judges, and to exclude

him, not from all political assemblies, but merely from one political

assembly? Was there ever such a mummery as the carrying of this bill

to the other House will be, if, unfortunately, it should be carried

thither. The noble lord, himself, I have no doubt, a magistrate, himself

at once a judge and a politician, accompanied by several gentlemen who

are at once judges and politicians, will go to the bar of the Lords, who

are all at once judges and politicians, will deliver the bill into the

hands of the Chancellor, who is at once the chief judge of the realm and

a Cabinet Minister, and will return hither proud of having purified the

administration of justice from the taint of politics.

Miscellaneous Writings and Speeches — Volume 4 · 第 42 / 45 段