Miscellaneous Writings and Speeches - Volume 4 by Thomas Badington Macaulay (red white and royal blue hardcover txt) 📖

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