this bill is utterly impotent. It will be effectual for one purpose,
and for one purpose only, for the purpose of weakening and degrading the
House of Commons. This is not the first time that an attempt has been
made, under specious pretexts, to lower the character and impair the
efficiency of the assembly which represents the great body of the
nation. More than a hundred and fifty years ago there was a general cry
that the number of placemen in Parliament was too great. No doubt, Sir,
the number was too great: the evil required a remedy: but some rash and
short-sighted though probably well meaning men, proposed a remedy which
would have produced far more evil than it would have removed. They
inserted in the Act of Settlement a clause providing that no person who
held any office under the Crown should sit in this House. The clause was
not to take effect till the House of Hanover should come to the throne;
and, happily for the country, before the House of Hanover came to the
throne, the clause was repealed. Had it not been repealed, the Act of
Settlement would have been, not a blessing, but a curse to the country.
There was no want, indeed, of plausible and popular commonplaces in
favour of this clause. No man, it was said, can serve two masters. A
courtier cannot be a good guardian of public liberty. A man who derives
his subsistence from the taxes cannot be trusted to check the public
expenditure. You will never have purity, you will never have economy,
till the stewards of the nation are independent of the Crown, and
dependent only on their constituents. Yes; all this sounded well: but
what man of sense now doubts that the effect of a law excluding all
official men from this House would have been to depress that branch of
the legislature which springs from the people, and to increase the
power and consideration of the hereditary aristocracy? The whole
administration would have been in the hands of peers. The chief object
of every eminent Commoner would have been to obtain a peerage. As
soon as any man had gained such distinction here by his eloquence and
knowledge that he was selected to fill the post of Chancellor of the
Exchequer, Secretary of State, or First Lord of the Admiralty, he would
instantly have turned his back on what would then indeed have been
emphatically the Lower House, and would have gone to that chamber in
which alone it would have been possible for him fully to display his
abilities and fully to gratify his ambition. Walpole and Pulteney, the
first Pitt and the second Pitt, Fox, Windham, Canning, Peel, all the men
whose memory is inseparably associated with this House, all the men of
whose names we think with pride as we pass through St Stephen's Hall,
the place of their contentions and their triumphs, would, in the vigour
and prime of life, have become Barons and Viscounts. The great conflict
of parties would have been transferred from the Commons to the Lords.
It would have been impossible for an assembly, in which not a single
statesman of great fame, authority, and experience in important affairs
would have been found, to hold its own against an assembly in which
all our eminent politicians and orators would have been collected. All
England, all Europe, would have been reading with breathless interest
the debates of the peers, and looking with anxiety for the divisions of
the peers, while we, instead of discussing high questions of state, and
giving a general direction to the whole domestic and foreign policy
of the realm, should have been settling the details of canal bills and
turnpike bills.
The noble lord, the Member for Kent does not, it is true, propose so
extensive and important a change as that which the authors of the Act of
Settlement wished to make. But the tendency of this bill is, beyond
all doubt, to make this House less capable than it once was, and less
capable than the other House now is, of discharging some of the most
important duties of a legislative assembly.
Of the duties of a legislative assembly, the noble lord, and some of
those gentlemen who support his bill, seem to me to have formed a very
imperfect notion. They argue as if the only business of the House of
Commons was to turn one set of men out of place, and to bring another
set into place; as if a judge could find no employment here but factious
wrangling. Sir, it is not so. There are extensive and peaceful provinces
of parliamentary business far removed from the fields of battle where
hostile parties encounter each other. A great jurist, seated among
us, might, without taking any prominent part in the strife between
the Ministry and the Opposition, render to his country most valuable
service, and earn for himself an imperishable name. Nor was there ever
a time when the assistance of such a jurist was more needed, or was more
likely to be justly appreciated, than at present. No observant man can
fail to perceive that there is in the public mind a general, a
growing, an earnest, and at the same time, I must say, a most sober and
reasonable desire for extensive law reform. I hope and believe that, for
some time to come, no year will pass without progress in law reform;
and I hold that of all law reformers the best is a learned, upright, and
large-minded judge. At such a time it is that we are called upon to shut
the door of this House against the last great judicial functionary to
whom the unwise legislation of former parliaments has left it open. In
the meantime the other House is open to him. It is open to all the other
judges who are not suffered to sit here. It is open to the Judge of
the Admiralty Court, whom the noble lord, twelve or thirteen years ago,
prevailed on us, in an unlucky hour, to exclude. In the other House
is the Lord Chancellor, and several retired Chancellors, a Lord Chief
Justice, in several retired Chief Justices. The Queen may place there
to-morrow the Chief Baron, the two Lords Justices, the three Vice
Chancellors, the very Master of the Rolls about whom we are debating:
and we, as if we were not already too weak for the discharge of our
functions, are trying to weaken ourselves still more. I harbour no
unfriendly feeling towards the Lords. I anticipate no conflict with
them. But it is not fit that we should be unable to bear an equal part
with them in the great work of improving and digesting the law. It
is not fit that we should be under the necessity of placing implicit
confidence in their superior wisdom, and of registering without
amendment, any bill which they may send us. To that humiliating
situation we are, I grieve to say, fast approaching. I was much struck
by a circumstance which occurred a few days ago. I heard the honourable
Member for Montrose, who, by the by, is one of the supporters of
this bill, urge the House to pass the Combination Bill, for a most
extraordinary reason. "We really," he said, "cannot tell how the law
about combinations of workmen at present stands; and, not knowing how
the law at present stands, we are quite incompetent to decide whether
it ought to be altered. Let us send the bill up to the Lords. They
understand these things. We do not. There are Chancellors, and
ex-Chancellors, and Judges among them. No doubt they will do what is
proper; and I shall acquiesce in their decision." Why, Sir, did ever any
legislative assembly abdicate its functions in so humiliating a manner?
Is it not strange that a gentleman, distinguished by his love of popular
institutions, and by the jealousy with which he regards the aristocracy,
should gravely propose that, on a subject which interests and excites
hundreds of thousands of our constituents, we should declare ourselves
incompetent to form an opinion, and beg the Lords to tell us what we
ought to do? And is it not stranger still that, while he admits the
incompetence of the House to discharge some of its most important
functions, and while he attributes that incompetence to the want of
judicial assistance, he should yet wish to shut out of the House the
only high judicial functionary who is now permitted to come into it?
But, says the honourable Member for Montrose, the Master of the Rolls
has duties to perform which, if properly performed, will leave him no
leisure for attendance in this House: it is important that there should
be a division of labour: no man can do two things well; and, if we
suffer a judge to be a member of Parliament, we shall have both a bad
member of Parliament and a bad judge.
Now, Sir, if this argument proves anything, it proves that the Master
of the Rolls, and indeed all the other judges, ought to be excluded from
the House of Lords as well as from the House of Commons. But I deny
that the argument is of any weight. The division of labour has its
disadvantages as well as its advantages. In operations merely mechanical
you can hardly carry the subdivision too far; but you may very easily
carry it too far in operations which require the exercise of high
intellectual powers. It is quite true, as Adam Smith tells us, that a
pin will be best made when one man does nothing but cut the wire, when
another does nothing but mould the head, when a third does nothing but
sharpen the point. But it is not true that Michael Angelo would have
been a greater painter if he had not been a sculptor: it is not true
that Newton would have been a greater experimental philosopher if he had
not been a geometrician; and it is not true that a man will be a worse
lawgiver because he is a great judge. I believe that there is as close
a connection between the functions of the judge and the functions of the
lawgiver as between anatomy and surgery. Would it not be the height of
absurdity to lay down the rule that nobody who dissected the dead should
be allowed to operate on the living? The effect of such a division of
labour would be that you would have nothing but bungling surgery; and
the effect of the division of labour which the honourable Member for
Montrose recommends will be that we shall have plenty of bungling
legislation. Who can be so well qualified to make laws and to mend laws
as a man whose business is to interpret laws and to administer laws? As
to this point I have great pleasure in citing an authority to which
the honourable Member for Montrose will, I know, be disposed to pay the
greatest deference; the authority of Mr Bentham. Of Mr Bentham's
moral and political speculations, I entertain, I must own, a very
mean opinion: but I hold him in high esteem as a jurist. Among all his
writings there is none which I value more than the treatise on Judicial
Organization. In that excellent work he discusses the question whether a
person who holds a judicial office ought to be permitted to hold with
it any other office. Mr Bentham argues strongly and convincingly against
pluralities; but he admits that there is one exception to the general
rule. A judge, he says, ought to be allowed to sit in the legislature as
a representative of the people; for the best school for a legislator
is the judicial bench; and the supply of legislative skill is in all
societies so scanty that none of it can be spared.
My honourable friend, the Member for Surrey, has completely refuted
another argument to which the noble lord, the Member for Kent, appears
to attach considerable importance. The noble lord conceives that no
person can enter this House without stooping to practice arts which
would ill become the gravity of the judicial character. He spoke
particularly of what he called the jollifications usual at elections.
Undoubtedly the festivities at elections are sometimes disgraced by
intemperance, and sometimes by buffoonery; and I wish from the bottom of
my heart that intemperance and buffoonery were the worst means to which
men, reputed upright and honourable in private life, have resorted in
order to obtain seats in the legislature. I should, indeed, be sorry
if any Master of the Rolls should court the favour of the populace by
playing the mounttebank on the hustings or on tavern tables. Still more
sorry should I be if any Master of the Rolls were to disgrace himself
and his office by employing the ministry of the Frails and the Flewkers,
by sending vile emissaries with false names, false addresses, and bags
of sovereigns, to buy the votes of the poor. No doubt a Master of the
Rolls ought to be free, not only from guilt, but from suspicion. I
have not hitherto mentioned the present Master of the Rolls. I have not
mentioned him because, in my opinion, this question ought to be decided
by general and not by personal considerations. I cannot, however,
refrain from saying, with a confidence which springs from long and
intimate acquaintance, that my valued friend, Sir John Romilly, will
never again sit in this House unless he can come in by means very
different from those by which he was turned out. But, Sir, are we
prepared to say that no person can become a representative of the
English people except by some sacrifice of integrity, or at least of
personal dignity? If it be so, we had indeed better think of setting
our House in order. If it be so, the prospects of our country are dark
indeed. How can England retain her place among the nations, if the
assembly to which all her dearest interests are confided, the assembly
which can, by a single vote, transfer the management of her affairs to
new hands, and give a new direction to her whole policy, foreign and
domestic, financial, commercial, and colonial, is closed against every
man who has rigid principles and a fine sense of decorum? But it is
not so. Did that great judge, Sir William Scott, lower his character by
entering this House as Member for the University of Oxford? Did Sir
John Copley lower his character by entering this House as Member for the
University of Cambridge? But the universities, you say, are constituent
bodies of a very peculiar kind. Be it so. Then, by your own admission,
there are a few seats in this House which eminent judges have filled
and may fill without any unseemly condescension. But it would be most
unjust, and in me, especially, most ungrateful, to compliment the
universities at the expense of other constituent bodies. I am one of
many members who know by experience that a generosity and a delicacy
of sentiment which would do honour to any seat of learning may be found
among the ten pound householders of our great cities. And, Sir, as to
the counties, need we look further than to your chair? It is of as much
importance that you should punctiliously preserve your dignity as that
the Master of the Rolls should punctiliously preserve his dignity.
If you had, at the last election, done anything inconsistent with
the integrity, with the gravity, with the suavity of temper which so
eminently qualify you to preside over our deliberations, your public
usefulness would have been seriously diminished. But the great county
which does itself honour by sending you to the House required from you
nothing unbecoming your character, and would have felt itself degraded
by your degradation. And what reason is there to doubt that other
constituent bodies would act as justly and considerately towards a judge
distinguished by uprightness and ability as Hampshire has acted towards
you?
One very futile argument only remains to be noticed. It is said that
we ought to be consistent; and that, having turned the Judge of the
Admiralty out of the House, we ought to send the Master of the Rolls
after him. I admit, Sir, that our system is at present very anomalous.
But it is better that a system should be anomalous than that it should
be uniformly and consistently bad. You have entered on a wrong course.
My advice is first that you stop, and secondly that you retrace your
steps. The time is not far distant when it will be necessary for us to
revise the constitution of this House. On that occasion, it will be
part of our duty to reconsider the rule which determines what
public functionaries shall be admitted to sit here, and what public
functionaries shall be excluded. That rule is, I must say, singularly
absurd. It is this, that no person who holds any office created since
the twenty-fifth of October, 1705, shall be a member of the House of
Commons. Nothing can be more unreasonable or more inconvenient. In
1705, there were two Secretaries of State and two Under Secretaries.
Consequently, to this day, only two Secretaries of State and two Under
Secretaries can sit among us. Suppose that the Home Secretary and the
Colonial Secretary are members of this House, and that the office of
Foreign Secretary becomes vacant. In that case, no member of this House,
whatever may be his qualifications, his fame in diplomacy, his knowledge
of all the politics of the Courts of Europe, can be appointed. Her
Majesty must give the Admiralty to the commoner who is, of all her
subjects, fittest for the Foreign Office, and the seals of the Foreign
Office to some peer who would perhaps be fitter for the Admiralty.
Again, the Postmaster General cannot sit in this House. Yet why not? He
always comes in and goes out with the Government: he is often a member
of the Cabinet; and I believe that he is, of all public functionaries,
the Chancellor of the Exchequer alone excepted, the one whom it would be
most convenient to have here. I earnestly hope that, before long,
this whole subject will be taken into serious consideration. As to the
judges, the rule which I should wish to see laid down is very simple.
I would admit into this House any judge whom the people might elect,
unless there were some special reason against admitting him. There is a
special reason against admitting any Irish or Scotch judge. Such a judge
cannot attend this House without ceasing to attend his court. There is a
special reason against admitting the Judges of the Queen's Bench and of
the Common Pleas, and the Barons of the Exchequer. They are summoned to
the House of Lords; and they sit there: their assistance is absolutely
necessary to enable that House to discharge its functions as the highest
court of appeal; and it would manifestly be both inconvenient and
derogatory to our dignity that members of our body should be at the beck
and call of the peers. I see no special reason for excluding the Master
of the Rolls; and I would, therefore, leave our door open to him. I
would open it to the Judge of the Admiralty, who has been most unwisely
excluded. I would open it to other great judicial officers who are
now excluded solely because their offices did not exist in 1705,
particularly to the two Lords Justices, and the three Vice Chancellors.
In this way, we should, I am convinced, greatly facilitate the important
and arduous work of law reform; we would raise the character of this
House: and I need not say that with the character of this House must
rise or fall the estimation in which representative institutions are
held throughout the world. But, whether the extensive changes which
I have recommended shall be thought desirable or not, I trust that
we shall reject the bill of the noble lord. I address myself to the
Conservative members on your left hand; and I ask them whether they are
prepared to alter, on grounds purely theoretical, a system which
has lasted during twenty generations without producing the smallest
practical evil. I turn to the Liberal members on this side; and I ask
them whether they are prepared to lower the reputation and to impair
the efficiency of that branch of the legislature which springs from
the people. For myself, Sir, I hope that I am at once a Liberal and a
Conservative politician; and, in both characters, I shall give a clear
and conscientious vote in favour of the amendment moved by my honourable
friend.
*****
INDEX.
Absalom and Achitophel of Dryden, character of it.
Absolute government, theory of.
Absolute rulers.
Academy, the French, its services to literature.
Addington, Henry, formation of his administration.
His position as Prime Minister.
Resigns.
Raised to the peerage.
Aeschines, compared by Mr Mitford to Demosthenes.
Aeschylus, his works, how regarded by Quintillian.
Agesilaus, depressed by the constitution of Lycurgus.
Ajax, the prayer of, in the Iliad.
Aldrich, Dean, his mode of instructing the youths of his college.
Employs Charles Boyle to edit the letters of Phalaris.
Alfieri, Vittorio, character of his works.
His great fault in his compositions.
Anatomy Bill, Speech on.
Antinomian barn preacher, story of the.
Approbation, love of.
Aristocratical form of government. See Oligarchy.
Aristotle, his unrivalled excellence in analysis and combination.
Value of his general propositions.
His enlightened and profound criticism.
Arnault, A.V., Translation from.
Arras, cruelties of the Jacobins at.
Arrian, his character as a historian.
Arts, the fine, laws on which the progress and decline of depend.
Athenian Revels, scenes from.
Athens; disreputable character of Peiraeus.
Police officers of the city.
Favourite epithet of the city.
The Athenian orators.
Excellence to which eloquence attained at.
Dr Johnson's contemptuous derision of the civilisation of the
people of.
Their books and book education.
An Athenian day.
Defects of the Athenians' conversational education.
The law of ostracism at Athens.
Happiness of the Athenians in their term of government.
Their naval superiority.
Ferocity of the Athenians in war.
And of their dependencies in seditions.
Cause of the violence of faction in that age.
Influence of Athenian genius on the human intellect and on
private happiness.
The gifts of Athens to man.
Character of the great dramas of Athens.
Change in the temper of the Athenians in the time of
Aristophanes.
Atterbury, Francis, his birth and early life.
Defends Martin Luther against the aspersions of Obadiah Walker.
Enters the church and becomes one of the royal chaplains.
Assists Charles Boyle in preparing an edition of the letters of
Phalaris.
His answer to Bentley's dissertation on the letters of Phalaris.
Bentley's reply.
Atterbury's defence of the clergy against the prelates.
Created a D.D. and promoted to the Deanery of Carlisle.
His pamphlets against the Whigs.
Appointed to the Deanery of Christ Church.
Removed to the Bishopric of Rochester.
His opposition to the Government of George I.
His private life.
His taste in literature and literary friends.
Thrown into prison for treason.
Deprived of his dignities and banished for life.
Calls Pope as a witness to his innocence.
Goes to Paris, and becomes Prime Minister of King James.
Retires from the court of the ex-King.
Death of his daughter.
Induced by the Pretender to return to Paris.
His defence of the charge of having garbled Clarendon's History
of the Rebellion.
His death.
August, lines written in.
Bacon, Lord, his description of the logomachies of the schoolmen.
And of the Utilitarian philosophy.
His mode of tracking the principle of heat.
Barbaroux, the Girondist, his execution.
Barere, Bertrand, Memoires de, of Carnot and David, review of
the.
Barere's true character.
His lies.
His talents as an author.
Sketch of his life.
Votes against the King.
His federal views and ultra Girondism.
His apparent zeal for the cause of order and humanity.
His motion for punishing the Jacobins.
Defeat of the Girondists.
Retains his seat at the Board of the Triumphant Mountain.
His infamous motion against the chiefs of the Girondists.
Moves that the Queen be brought before the Revolutionary
Tribunal.
Regales Robespierre and other Jacobins at a tavern on the day of
the death of the Queen.
Formation of his peculiar style of oratory.
His Carmagnoles.
Effect produced by his discourses.
Seconds Robespierre's atrocious motion in the Convention.
Becomes one of the six members of the Committee of Public Safety.
The first to proclaim terror as the order of the day.
Recommends Fouquier Tinville to the Revolutionary Committee of
Paris.
His proposal to destroy Lyons and Toulon.
His opposition to the personal defence of Danton.
His support of the wretch Lebon.
His war against learning, art, and history.
His sensual excesses.
Becomes a really cruel man.
His morning audiences and mode of treating petitions.
His orders against certain head-dresses.
Nicknames given to him.
Obtains a decree that no quarter should be given to any English
or Hanoverian soldier.
M. Carnot's defence of this barbarity.
Barere's support of Robespierre's fiendish decree.
His panegyric on Robespierre.
His motion that Robespierre and his accomplices should be put to
death.
Destruction of the power of the Jacobins.
Report on his conduct voted by the Convention.
Condemned to be removed to a distant place of confinement.
His perilous journey.
Imprisoned at Oleron.
Removed to Saintes.
Escapes to Bordeaux.
Chosen a member of the Council of Five Hundred, which refuses to
admit him.
His libel on England.
The Liberty of the Seas.
His flight to St Ouen.
Sends a copy of his work to the First Consul.
Allowed by Bonaparte to remain in Paris.
Refuses; becomes a writer and a spy to Bonaparte.
Sends his friend Demerville to the guillotine.
Spies set to watch the spy.
Ordered to quit Paris.
Employed in the lowest political drudgery.
His "Memorial Antibritannique" and pamphlets.
His fulsome adulation of the Emperor.
Causes of his failure as a journalist.
Treated with contempt by Napoleon.
His treachery to his Imperial master.
Becomes a royalist on the return of the Bourbons.
Compelled to leave France.
Returns in July 1830.
Joins the extreme left.
His last years and death.
Summary of his character.
His hatred of England.
His MS. works on divinity.
Barre, Colonel, joins the Whig opposition.
Appointed by Pitt Clerk of the Pells.
Bearn, the constitution of.
Beatrice, Dante's love of.
Beauclerc, Topham, a member of the Literary Club.
Bentham, Mr, his defence of Mr Mill.
His merits and shortcomings.
Examination of his views.
His account of the manner in which he arrived at the "greatest
happiness principle."
Testimony to his merits.
Bentinck, Lord William, inscription on the statue of, at
Calcutta.