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.