Miscellaneous Writings and Speeches — Volume 4

by Baron Thomas Babington Macaulay Macaulay

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.

No, Sir, no; for the purpose of purifying the administration of justice 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?