TOPICS OF THE DAY.
LORD PENZANCE ON THE UPPER HOUSE.
IT is not difficult to understand the partisans on either side of the present question, but we find it difficult to understand the position of a man like Lord Penzance. He was a Judge of eminence, supposed to have a specially cool mind, yet he published on Tuesday a letter in the Times intended to have much of the passionless force of a Judge's charge, which shows that he does not comprehend the elementary principles of Constitutional politics. He pleads for the prerogative of the House of Lords with arguments which, if they are correct, prove that the abolition of the Upper House, or at least a great restriction on its powers, is immediately indispensable. He objects to the second submission of the Franchise Bill to the Peers as an act of " coercion ;" and maintains that the Lords arc bound to reject it, because it is a claim on behalf of the House of Commons "to make laws for this country without the free assent of the other House." Has any great law not purely social ever passed Parliament since 1832 with the free assent of the other House ? So far as we know, every first-class measure—the abolition of the Corn Laws, the laws abolishing Protection, the abolition of the Paper Duty, the removal of Jewish Dis- abilities, the abolition of the Irish Church, the introduction of Household Suffrage, the adoption of the Ballot, the Irish Land Law—have all passed Parliament without the "free assent" of the House of Lords, which has yielded in all cases, not from conviction, but from fear of agitation, or dread of the Commons, or despair before a political necessity ; or in one case, as Lord Malmesbury shows, from fear of a threat that a Tory Premier, Lord Derby, would resign. Great measures have always been passed by the virtual coercion of the Upper House ; and the House of Commons has always pretended to be in the last resort the sole and indefeasible authority in the realm. Indeed, there is no possibility that it should be other- wise, unless the Lords are to be the ultimate authority, or unless legislation is to stop. Lord Penzance says :—" Does any one deny that under the British Constitution the House of Lords is an independent Chamber, debating and resolving all questions of legislation without reference to what may have been done in the Chamber of the Commons ?" Yes, we deny it absolutely. The House of Lords, so far from being under the Constitution a co-ordinate and equal Chamber with the Commons, is a legislative body lying absolutely at the mercy of the Sovereign, who on the advice of the Ministry, that is, of the House of Commons, can legally compel it, by swamping its voters, to pass any required law. It was so compelled in 1832, and the power of compulsion has ever since been re- garded as one of the vital forces of the Constitution, without which it must come to a deadlock. If it were not so, and the House of Lords were really "free," then Benjamin Franklin's sneer would be true, and the Legislature would really be a cart carefully provided with two horses of equal strength, one to pull forward and the other to pull back. Legislation could never advance at all, except when a Tory Ministry was in power, and the statesmen would be compelled in the interests, not of Democracy, but of the working of the Queen's Government. to revise the Constitution. Lord Penzance is of all men in England the one most familiar with the working of our Marriage Laws. Does he really believe that if the legal position of husband and wife were one of absolute equality, and that position were on all occasions asserted to the utmost, the management of a home could go on ? He knows perfectly well that it would be impossible ; yet he actually tells the Upper House, which at the utmost is only the wife in the household of the Commonwealth, that it will disgrace it to yield :—" That the Peers should pass such a Bill is what can- not be expected from any body of men who retain their self- respect, as I think Lord Cowper has said. But to me it appears that a surrender of their position as an independent branch of the Legislature, by giving way to this claim to legislate without their free assent, or, which is the same thing, to dictate the conclusions at which they should arrive, would be a grave political delinquency." Why would it be a delinquency any more than to pass the Reform Bill of 1832, or that of 1867, in both of which instances the conduct of the Lords was " dictated " to them. Why, even Lord Salisbury, who speaks out because he does not care what becomes of his House, admits that the Lords must obey the nation, and that therefore their claim to be " free " and "beyond dictation" is unreal. Their " conclasions " may remain absolutely opposed to those of the people, and yet even by the admission of the most determined aristocrat of our time, they must give way.
We are not putting forward just now the claim of Democracy to rule, but only the claim of any community to have a working Government,—a claim which is rejected, if in any State the right of two Chambers is made in practice co-ordinate. They must differ sometimes on radical points ; and if they differ one must habitually yield, or government must go to pieces. Tories are always saying that two independent and free Chambers exist in all free States ; but the assertion is only true to the ear. The American Senate is not free, except by the will of the people, for, if the House of Representatives chose, and were supported by the people, it could by a simple exertion of its sole power over money bills, reduce the Senate to subjection. It will not do this, because the people value the Federal principle more than the Representative principle ; but if the Senate had remained Southern in the war it would have done it. The Federal Council in Germany, we fully admit, is beyond coercion from the Reichstag ; but then that is because Germany is not a " free " State, that is, not a Parliamentary State at all, but a monarchical federation, in which the Kings have certain irresponsible powers, such as the Veto, which the nation cannot legally limit or abolish. The Reichstag could not even suspend the collection of taxes, still less suffer the Mutiny Act to drop. In France, the Senate was for a moment independent, but it has now lost the power of finally rejecting a money bill, and in practice could not stand for an hour against a vote of the Deputies eagerly supported by the people. In the worst case, all Senators but seventy-five would in the elections lose their seats. In no other country is the Upper House even considered, except when it is used by the Ministry to delay or reject some violent vote of the Lower Chamber,—the pivot of power in such cases, as in Denmark for instance, being the King's Government, which cannot be overthrown without risk to national independence. That the Upper House should be the higher House is possible enough, and, indeed, it was so in England from the Restoration to 1832; but that both should be equal in " freedom " is, on the face of it, impossible. During that period the Commons were not "free," the Lords controlling their votes. The appearance of freedom can, of course, be maintained, and is probably one of those high courtesies which, like the appearance of freedom in a dependant State,. facilitate business, and on minor points when the House of Com- mons is not determined, this freedom may be real ; but true legal freedom on all points for two Houses is not compatible with the march of the Queen's Government. There must exist a permanent necessity for the weaker power to yield, and this necessity has been for fifty-two years recognised in the daily working of the Constitution. The Lords have yielded twenty times, when, had they been really "free," they would have done the exact contrary of what they did do.
But it is implied that it is shameful for the Upper House to recognise that it is not " free,"—that is, entitled to do as it pleases, or, in Lord Penzance's phrase, as its " conclusions " dictate. Why is it shameful any more than for the Sovereign, or for the minority, or for a private person The Sovereign bows to the people every day, the minority yields at every election, and there is not a sensible individual anywhere who does not know that if he exerts his legal rights to an extreme he will lose them. The Duke of Westminster can, by legal right, turn West London into grazing-farms, as it was before ; but suppose he tries to do it ? Lord Penzance says that in that case he is not "free ;" and that is exactly the fact, and so much the better for him. It is of the very essence of English organisation, political as well as locial, that nobody is free, in Lord Penzance's sense, that is, free to exert irrational self-will, not even the nation, which, though it is acknowledged to be final arbiter, must wait until its delegated Executive recommends that it be consulted. It is because of these limitations on freedom, most of them unwritten, that legal rights in England can be made so definite ; that a mixed Constitution, which is a miracle of bad logic, has worked so well ; and that a people who intend to govern themselves have been able to put up with a Monarchy which on its own theory issues all orders, and a hereditary House which on its own theory is co-ordinate with the Commons.
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