[398:1] Pike, 285-87; Anson, I., 227-28. These cases are referred to the Committee of Privileges.

[398:2] The Act of 1870 abolished corruption of blood, so that a sentence no longer cuts off the heirs.

[398:3] Hans. 4 Ser. x.x.xIII., 1058 _et seq._, 1174 _et seq._, and 1728 _et seq._ _Cf._ Rep. of Com. on Vacating of Seats, Com. Papers, 1895, X., 561.

[399:1] For misdemeanors, peers, like other persons, are tried by an ordinary jury.

[399:2] Upon conviction a peer is now liable to the same punishment as other offenders.

[399:3] For the history of the subject in general see Pike, Chs. x., xi., and for that of the bishops, _Ibid._, 151-68, 179-94, 219-23.

[400:1] 9 Com. Journals, 235.

[400:2] 9 _Ibid._, 509.

[400:3] _Cf._ May, "Const. Hist.," I., Ch. viii., 444.

[401:1] May, "Parl. Prac.," 542.

[401:2] _Ibid._, 547, 549-50.

[401:3] _Ibid._, 552-53.

[401:4] _Ibid._, 551-52.

[401:5] _Cf. Ibid._, 544-46.

[401:6] For the same purpose the Lords sometimes insert a clause, in a bill or amendment, that a financial provision really essential to their plan shall not be operative, and then the Commons strike the clause out.

May, 547-49.

[401:7] S.O.P.B. 226. Sometimes, also, at the request of the member in charge of a bill, the Commons consent to waive a privilege on which they might have insisted.

[402:1] May, 541.

[402:2] _Ibid._, 296-97.

[402:3] _Ibid._, 186, 307.

[402:4] A Lord Keeper of the Great Seal has the same rights to preside as the Lord Chancellor, and if the Seal be in commission the Crown appoints a Lord Speaker. May, 184-86.

[403:1] Two days' notice must be given of a motion to suspend this order. May, 350-51.

[403:2] May, 376, 377.

[404:1] May, 204, 205.

[404:2] _Ibid._, 206.

CHAPTER XXII

THE CABINET AND THE HOUSE OF LORDS

[Sidenote: Effect of The Reform Act of 1832.]

By sweeping away rotten boroughs, and giving representatives to new centres of industry, the Reform Act of 1832 made a great change in the position of the House of Lords; not by lessening its power--for since the Great Rebellion the Lords as a branch of the legislature has never had much power--but by the change in the composition of the House of Commons which opened a door to conflicts between the two bodies. In the old unreformed days the Lords and Commons were in general accord, because both were controlled by a territorial aristocracy whose chief members were peers. That element remained, no doubt, strong in the Commons after the Act of 1832, but it was no longer overmastering, and it had to use its authority in a more popular spirit, so that the two Houses ceased to be controlled by the same force. By bringing about this result the Reform Act drew attention to the fact that an hereditary body, however great the personal influence of its members, could not in nineteenth century England be the equal in corporate authority of a representative chamber. It became apparent that the House of Lords might on important issues differ in opinion from the House of Commons, and that in such cases an enduring desire of the nation, as expressed in the representative chamber, must prevail.

[Sidenote: Power of the Lords Thereafter.]

This did not mean that the House of Lords must submit to everything that the Commons chose to ordain; that it was to become a mere fifth wheel of the coach; on the contrary, in matters not of great importance, or on which the Commons were not thoroughly in earnest, it exercised its own judgment, sometimes in cases that caused no little friction between the Houses. In 1860, for example, it rejected the bill to repeal the duties on paper; in 1871 it refused to concur in the abolition of the purchase of commissions in the Army; and in 1880 it rejected the bill to compensate evicted Irish tenants. In all these cases the policy of the House of Commons was ultimately carried out; and the peers recognised fully that their action on great measures was tentative; that they must not go too far; and that if public opinion was persistent they must in the end give way. As Mr. Sidney Low well says: "The House of Lords, ever since the struggle over the great Reform Bill, has been haunted by a suspicion that it exists on sufferance."[406:1]

[Sidenote: The House of Lords is Conservative.]

From the fact that it represents, in the main, the interests of property, and especially of landed property, the House of Lords tends naturally to be conservative, in the sense that it is adverse to popular demands which appear dangerous to interests of that kind, or indeed to the established order of things; but more than this, the peerage as a ma.s.s tends from its social position in the nation to gravitate toward the political party that clings to the n.o.bility and the Church as pillars of the state. During the half century that followed the first Reform Act, the Liberals were in power much the greater part of the time, and they created by far the larger number of peers;[406:2] yet the House of Lords remained firmly Conservative throughout; for even Liberal peers--and still more their descendants--are drawn by a steady current to the other side; a current that was accelerated, but not caused, by the Home Rule Bill.

The House is, in fact, overwhelmingly Conservative. Of the hereditary peers more than four fifths belong to the Unionist party; and the disproportion is increased by the representatives from Scotland and Ireland. In the case of Ireland this is the inevitable result of the method of choosing, because elections occur only one at a time on the death of a representative peer, and his successor is always taken from the dominant--that is, the Unionist--party. In Scotland, there being no provision for minority representation, the same result takes place, the majority electing all the sixteen peers for the Parliament from its own side; and thus the representative peers from both kingdoms, forty-four in number, are Unionists to a man.

[Sidenote: Meaning of the Term "Conservative."]

It is commonly said that the House of Lords is a conservative body which acts as a drag on hasty legislation, and holds back until the nation shows clearly that it has made up its mind. This is undoubtedly true, and if it were the whole truth the limited authority retained by the House would provoke no strong resentment in any quarter; but it is only a part of the truth. The word "conservative" has two distinct meanings in England, according as it is spelled with a small or a capital C. The first signifies an aversion to change; the second, one of the two great political parties in the state. Now, for more than a generation after the Reform Act of 1832 these two meanings of the word were not very far apart. The Conservative party was to such an extent the party of resistance to change as to make plausible, if not accurate, Macaulay's comparison of the two parties that divided the nation to the fore and hind legs of a stag, the Liberals being always in advance, and the Conservatives following their footsteps at a distance. The simile expressed one aspect of a not uncommon feeling, that the direction of the national policy rested normally with the Liberals, but that when they went too fast the Conservatives would come to power for a short time, while the country adjusted itself to its new conditions. That under these circ.u.mstances the House of Lords should act with the Conservative party, and should help them to play the part of a brake from time to time, not in order to stop, but only to slow down, the coach on a hill, was natural, and not open to serious objection. But Disraeli's constant preaching against a merely negative policy, coupled with the need of seeking for working-cla.s.s support after the extension of the franchise by the Reform Act of 1867, led to the abandonment by the Tories of the att.i.tude of resistance to change. Even if it be true that the new Tory democracy is, on the whole, less progressive than the Liberal party, it is certainly not opposed to all progress. In more than one direction, indeed, it is distinctly more favourable to change. If the stag has not become double-headed, he has, at least, learned to walk with either end in front; and this change in the Tory party has had a marked effect upon the position of the House of Lords.

[Sidenote: The House has Become a Tool of the Conservative Party.]

Although the Conservatives have outgrown their negative att.i.tude of resistance to change, and have become an aggressive party with a positive policy, they have retained and even strengthened their control of the House of Lords. The House has not, of course, lost all volition so completely as merely to register the commands of the Unionist leaders. To some extent it has its own opinions, which are now more conservative than theirs; and even when they are in power it amends the lesser details of their bills with a good deal of freedom, sometimes making its own views prevail. In 1899, for example, it struck out of the London Local Government Bill the provision allowing women to vote for the borough councils, a change that the Commons accepted with reluctance; and in 1902 it succeeded in making amendments to the Elementary Education Bill, which threw upon the rates the burden of current repairs in the Church schools, and preserved some control by the bishops over religious instruction therein.

But while the House of Lords has a will of its own in smaller questions, on the great party struggles that rend the country it throws its weight wholly on the side of the Tories, and plays into their hands. Thus, from 1892 to 1895, and again in 1906,--the only two occasions on which the Liberals have been in office for a score of years,--the House of Lords used its power boldly to hobble the government. That it did so to help the Unionist party, and not simply from conservative objection to change, is curiously brought out by its treatment of the princ.i.p.al measures of 1906. Besides the Education Bill, where the conflict of opinion lay very deep, two other government measures that aroused some feeling came to it from the Commons. One of them, the Trades Dispute Bill, which provided that a trade union should not be liable to suit for any action it might take during a strike, was certainly a radical measure, and one to which a chamber of conservative temperament might well object; but the Lords pa.s.sed it without amendment. The other, the Plural Voting Bill, designed to prevent a man from voting in more than one place, involved no very profound question of principle, and made no very far-reaching change in English inst.i.tutions, but was a bone of contention between the parties because it affected the chances of election in close districts. This bill the House of Lords summarily rejected.

The fact is that since the Reform Act of 1832 government by party has become highly developed; and although the differences between the principles of the two parties may be less fundamental than they were formerly, the voting in Parliament runs very much more strictly on party lines.[409:1] Politics have become more completely a battle between parties, in which it is more difficult than ever to avoid taking sides, while the combatants try to make use of every weapon within their reach.

Now the very accentuation of party has made it easier for the peers to resist a Liberal ministry, because in doing so they are evidently opposing, not the people as a whole, but only a part of the people, and a part that is a majority by a very small fraction. In this way it has happened that the House of Lords, without ceasing to have an opinion of its own on other matters, has become for party purposes an instrument in the hands of the Tory leaders, who use it as a bishop or knight of their own colour on the chess-board of party politics.

[Sidenote: Position of the House in Forcing a Referendum.]

A cabinet never thinks of resigning on account of the hostility of the Lords; nor is its position directly affected by their action.

Indirectly, however, it may be very seriously impaired, if the peers, claiming that the government is not really in accord with the electorate, reject important measures, and thereby challenge a dissolution of Parliament. By doing so they may reduce a ministry, that is not in a condition to dissolve, to a state of political impotence, both in fact and in the eyes of the nation. This was true of the Liberal administration in 1893-94, when the peers rejected the Home Rule Bill, and made amendments that struck at the root of the Parish Councils and Employers' Liability Bills, changing the latter in a manner so vital that the government finally withdrew the measure altogether. The Liberals protested that the House of Lords thwarted the will of the people, and ought to be ended or mended. The alliteration helped to make the phrase a catchword, but the cry excited popular enthusiasm so little that at the dissolution in 1895 the country upheld the same party as the House of Lords, and returned a large Unionist majority to Parliament.

For the Lords to appeal to the people at a moment when the people were of their party was naturally not an unpopular thing to do, and for some time after the fall of Lord Rosebery's government they rather gained than lost ground in the esteem of the public. The Conservatives, indeed, declared that the House had renewed its youth, and had become once more an important organ of the state by a.s.serting its right to appealing from the cabinet and the majority in the Commons to the nation itself. The Lords were said to have attained the function of demanding a sort of referendum on measures of exceptional gravity; but useful as such a function might be, if in the nature of things a possible one, the existing House of Lords cannot really exercise it, because their object in doing so is essentially partisan. In attempting to appeal to the electorate, they act at the behest of one party alone. Thus in 1893 the Lords were quite ready to force the issue whether the cabinet retained the confidence of the country; but in 1905 when a series of adverse by-elections made it exceedingly doubtful whether the Conservative government had not lost its popularity, nothing was further from their intention than to cause a dissolution.

Now, a power to provoke a referendum or appeal to the people, which is always used in favour of one party and against the other, however popular it may be at a given moment, and however much it may be permanently satisfactory to the party that it helps, cannot fail in the long run to be exceedingly annoying to its rival; nor is it likely to commend itself to the great ma.s.s of thinking men as a just and statesmanlike inst.i.tution. The House of Lords is a permanent handicap in favour of the Tories, which is believed to have helped them even in elections for the House of Commons. The workingmen have been told that although the Conservatives promise them less, they are better able to fulfil their promises than the Liberals who cannot control the House of Lords. These things must be borne in mind in discussing a possible reform of the upper House; but before coming to that question it will be well to look at the Lords under some other aspects--at their non-partisan activity, their treatment of private members' bills, and of private bill legislation, and at the personal influence of the leading peers.

[Sidenote: Non-political Legislation.]

So far we have considered only government bills, backed by the authority of a responsible ministry, which the upper House must treat with circ.u.mspection. The Lords do not feel the same restraint in regard to private members' bills sent to them from the Commons. These lie beyond the immediate range of party conflicts, and although they may occasionally deal with important subjects, neither the cabinet nor the parties take sides officially upon them. The Lords can, therefore, amend or reject them without fear; but it has become so difficult for a private member to get through the Commons any bill to which there is serious opposition, that this function of the upper House is not of great use. Still less vital is its power to initiate measures. In order the better to employ the time of the Commons the government introduces some of its secondary bills first in the Lords;[412:1] but measures proposed by individual peers have little chance of success. It is hard enough for a private member of the Commons to put his bill through its stages in that House, with all the sittings reserved for the purpose in the earlier part of the session; and it is even harder to pa.s.s a bill brought from the Lords at a later date. The result is that of the few private members' bills enacted each session only about one sixth originate with the peers.

[Sidenote: Private Bill Legislation.]

The relation of the House of Lords to private bill legislation is very different, for bills of that kind are in a region quite outside of politics. In their case, as already observed, the action of the Lords is, if anything, even more important than that of the Commons; and, in fact, the private bill committees of the upper House inspire in general a greater confidence, because the members are men of more experience.[412:2] While, therefore, the House of Lords occupies a subordinate place in regard to public measures of all kinds, and a position of marked inferiority in the case of government bills, in private and local legislation, which in England is of great importance, its activity is constant and highly useful.