Chapter X: Part 10

Perhaps the happiest hit he ever made was that which covered the unhappy State of Pennsylvania with the shame it was worthy of. No one else could have done this so well. His indignation and vehemence—his grief at the disgrace thus brought upon a country where his own opinions were supreme—are pointed, and brought home, by the keen touch of ridicule, with a characteristic force and pungency. He is grieved; but still he has a satisfaction in pulling the stray American to pieces, and making over his jewellery to afflicted bondholders. He is angry; but still he can laugh at his proposed uniform, the S. S. for Solvent States, which he would have the New Yorkers wear upon their collars. We have all a wicked enjoyment of other people’s castigation; and we are afraid the public in general—those of them who hold no Pennsylvanian bonds—were amply consoled by Sydney Smith’s letters for the sins of their brethren. Lady Holland tells us that the excitement in America was extraordinary, and that shoals of letters, and occasional homely presents, poured upon her father from all quarters. It was a fair blow, downright and unanswerable; and no one could have a better right to assault in full force a public dishonesty than such a man as this, honest to the bottom of his heart.

We cannot undertake to predict whether or not the reputation of Sydney Smith will be a lasting reputation. His published works are not very remarkable, and they refer so entirely—saving the sketches of philosophy—to current books and current events—events and books which, to use his own phrase, have blown over—that it seems very doubtful if they can last over two or three generations. Admirable good sense, good English, and good morality, even with the zest of wit to heighten them, do not make a man immortal. They have already done their part, and earned their triumph; the future is in other hands. Herein lies the compensating principle of literature. The critic (and there have been critics more brilliant than Sydney) has his day. Yes, there he stands over all our heads, bowling us down like so many ninepins—small matter to him that in this book lies somebody’s hopes, and heart, and fortune. Little cares he for the stifled edition, the turned tide of popular favour. He goes about it coolly: it is his business—practising his deathstroke upon palpitating young poets and unhappy novel-writers, as the German executioner practised upon cabbages. We die by the score under this literary Attila. Our poor bits of laurel, our myrtle-sprigs and leaves of bay, are crushed to dust beneath his ruthless footsteps. With a barbarous triumph he rides over us, extinguishes our poor pretensions, puts us down. Never mind, humiliated brother! The critic has his day. By-and-by there will only be a distant _sough_ of him in the curious byways of historic lore. But the Book, oh patient Lazarus!—the Book will live out a century of reviewers, and be as young a hundred years hence as it is to-day.

Wherefore we seriously opine that a lasting reputation as a writer is not to be expected for Sydney Smith. As long as the children’s children of his contemporaries remain to tell and to remember what they heard in the days of their youth, so long his influence as a man will live among us. Had this biography been less a work of love, and more a work of art, it might have added a longer recollection to this natural memory; for its hero is so true an example of the kind of man whom British men delight to honour, that he might well have been singled out for a popular canonisation. As it is, this simple presentment of Sydney Smith is enough to place him upon his true standing-ground, and recommend him, far above all differences of opinion, or strifes of politics, to the affectionate estimation of every reader. A man honest, courageous, and truthful, struggling bravely through the ordinary trials of everyday existence, bearing poverty and neglect, bearing flattery and favour, coming forth unharmed through more than one fiery ordeal, and with the lightest heart and kindest temper, skilled in that art of ruling himself which is greater than taking a city. A little more sentiment, or a little less practical vigour, might have broken the charm. In his own person, as he lived, he is the very hero of social success and prosperity—for under no circumstances could he have appeared an unappreciated genius or a disappointed man. We are somewhat scornful in these days of the qualities of success. Indeed, it seems a general opinion, that the higher a man’s gifts are, the less are his chances. But many a youth of genius would do well to note the teachings of such a cordial and manly life as this, and mark how the gayest heart, and the most brilliant intelligence, are honoured and exalted by such homely virtues as self-restraint and self-denial. Sydney Smith in Oxford, living upon his hundred pounds a-year; Sydney Smith in Netherhaven, honestly enduring his curacy; taking no excuse from his wit; yielding nothing to his natural love of that society in which he shone; undisheartened by a profession which he did not love, and duties for which he had no distinct vocation; honestly, under all circumstances, maintaining his honour, his independence, and his purity, is a better moral lesson than all the lecturings of all the societies in the world.

We cannot perceive any closer resemblance, for our own part, much as they are named together, between Swift and Sydney Smith, than the merely evident and external one—that both were famous wits, and both somewhat unclerical clergymen. Sydney has the mightiest advantage in moral sunshine and sweetness over the redoubtable Dean. The Canon of St Paul’s broke no hearts and injured no reputations. There is not a cloud upon his open and bright horizon, except the passing clouds of Providence, and bitterness was not in his kind and generous heart. There is only one grand blunder in his life, and that is his profession. In such a matter the dutifullest of sons is not excusable in “yielding to his father’s wishes.” We can appreciate the sacrifice, but we cannot approve it. It was filial, but it was wrong. Sydney Smith is an honest man, a truthful man, and in ordinary life unblamable. We have no right to criticise the piety or religiousness of such a person in any private position, but with a clergyman the circumstances are different—and the veriest sinner requires something more than professional propriety as the motive and inspiration of the teachers of the faith.

So strong and usual is this feeling, that we do not doubt this book must have been an entire revelation to a great majority of its readers. We knew his great reputation; we knew his wit, and the general tenor of his opinions; yet we were shy of a man whose position and fame seemed almost antagonistic, and set up in our own mind a natural opposition between the sermons of the preacher and the _bon mots_ of the wit. This biography resolves the puzzle. Full of mirth, spontaneous and unlaboured, full of honest consistency and good-will, we accept Sydney Smith as he was, and judge of him by his own principles and actions—his own standard of perfection. Who does not lack some crowning charm to add a fuller and a sweeter excellence to all the lesser virtues? This man was distinguished in all social qualities—virtuous, conscientious, incorruptible, doing bravely every duty which he perceived in his way; and we can point to no truer type of an upright and open-hearted Englishman, than the bright portrait of this modest volume, the true monument and effigies of Sydney Smith.

PEERAGES FOR LIFE.

[We rarely have two articles upon one subject in the same Number of the Magazine, but we have no hesitation in publishing the two following short papers upon the unhappy and singularly ill-timed attempt to destroy the hereditary character of one branch of the Legislature. The first paper is by an English, and the second by a Scotch lawyer.]

It is not, we hope, from any party feeling (though party feelings are, as our readers know, entitled, in our view of things, to grave and deep consideration), that we enter our protest against the measure of creating peers for life,—a measure which its authors, unless they are the most shortsighted men that ever presumed to meddle with great questions, must know will end by changing the character of the House of Lords, and which we really believe to be an attempt as rash as it is uncalled for, and as little likely to conciliate the favour of any but those who dislike a government by King, Lords, and Commons, as it is to produce any one solid or permanent advantage. To those who think that the English constitution—a constitution which has floated like an ark over the waves which have swallowed up so many of those baseless fabrics that were hailed by sciolists as the proudest efforts of legislation—should be, we do not say repaired, and improved, and fortified, but _overthrown_, to make room for “some gay creature of the element” to people the sunbeam for a moment and then to disappear—we do not address ourselves; for we could not hope to produce any effect by reasoning upon those on whom the evidence of their senses is thrown away. But we would ask such of our readers as do not belong to the class we have just mentioned, calmly and dispassionately to examine with us this important question—premising only that the Reform Bill was by no means so serious and menacing a change in the constitution of the Lower, as the creation of peers for life (if that disastrous measure is really to be accomplished), will produce in the Upper House of Parliament. The Reform Bill shuffled the cards; this measure will change the pack. It is at once exotic and obsolete.

The question may be considered in two ways. First, Has the Crown the power to make such a creation? Secondly, Supposing it to possess the power, is such an exercise of it constitutional? With regard to the first question, it is, even on the showing of its supporters, an extremely doubtful one. “Rectissime illud receptum est, ut leges non solum suffragio legislatoris sed etiam tacito consensu omnium per desuetudinem abrogantur,” is a maxim embodied in the works of those masters of jurisprudence, to whom alone, to use the words of one of their most illustrious scholars, reason seems to have unveiled her mysteries. Nor is the principle unknown to our municipal jurisprudence. It was a law that every member of a city or borough should be chosen from among the inhabitants of the place which he was selected to represent. This law was abrogated by desuetude only. Many similar instances might probably be found by any one who would examine our ancient statutes. That custom is the best interpreter of written law is an axiom of jurisprudence; and how much more forcibly does the argument apply to unwritten law, to an obsolete prerogative raked from the dust and cobwebs of feudal barbarity, and dragged forth “in luce asiæ” into the meridian blaze of civilisation, to act upon the destinies of living men. The revival of obsolete prerogatives was one great and just complaint against the Government of Charles I. Lord Clarendon, his ablest advocate, bewails the injudicious and violent measures that unhappy monarch took in reviving the Forest Laws, and obliging gentlemen of certain incomes to compound for knighthood. Had he attempted to strip the peerage of its hereditary character, the outcry would have been louder and more reasonable; for of course our argument applies only to the case of conferring, by a peerage for life, a voice or seat in Parliament. “The common law of England,” says a great lawyer and a great thinker, “is nothing else but the common custom of the realm, and a custom which has obtained the force of a law is always said to be ‘Jus non scriptum.’ ... Being only matter of fact, and consisting in use and practice, it can be RECORDED AND REGISTERED NOWHERE BUT IN THE MEMORY OF THE PEOPLE.” Again the same eloquent writer says:—“A custom takes beginning, and grows to perfection in this manner: When a reasonable act once done is found to be good and beneficial to the people, and agreeable to their nature and disposition, then do they use and practise it again and again—and so, by often iteration and multiplication of the act it becomes a custom; and being continued without interruption time out of mind, it obtains the force of a law.” This is exactly the basis on which the “rerum perpetuo similiter judicatarum auctoritas” must rest, and exactly the reverse of that prerogative, by the sudden exertion of which, after a lapse of four centuries, it is proposed to give to any minister the power of swamping the House of Peers. What would be said now if any one were to attempt to put on “the statute of uses” the meaning which those by whom it was enacted undoubtedly meant that it should have, and which was frustrated by the narrow decision, as Mr Hallam calls it, of the Judges? If any man were insane enough to attempt such an argument, would he not be silenced at once, and forfeit, for the remainder of his life, all claim to the character of a rational being? Would he not be told that, after the current of precedent had run for centuries in one direction, after all the Estates in England had been settled and disposed of on the faith of those precedents, it was mere mischievous pedantry to question the validity of the original interpretation? Now, the last time when the Crown gave the right of voting in the House of Lords to any one who would not transmit the same right to his children, to any one whose blood was not ennobled, was long before the period when the statute of uses passed into a law. The four or five cases cited to justify such a stretch of authority are taken from times when the boundaries of the constitution fluctuated incessantly,—when sometimes the king oppressed the barons, and sometimes the barons destroyed the king,—when one encroached upon the other, as he or they were uppermost in a series of victories and defeats equally oppressive to the people, and equally inconsistent with all regular government,—when the soil of England was drenched with the blood of the yeoman, and the axe of the executioner was red with the blood of the noble,—“in stormy and tempestuous times,” to use the language of a great and upright magistrate, Chief-Justice Crew, “when the government was unsettled, and the kingdom in competition,”—when Bohun, and Mowbray, and Mortimer passed away—nay, when Plantagenet himself became a shadow and a dream. Will any man say that this was a period when our constitution was understood? that this is the time when its parts were adjusted to each other?—when, though the noble outline of it might be discernible, its lineaments were complete? At that time the Crown granted or withheld writs to boroughs at its pleasure, and so moulded the House of Commons. It summoned a man to take his seat in one Parliament and not in another, and so modelled the House of Lords. But even of these cases, drawn from those times of turbulence and confusion, while the elements of our constitution were at war with each other, predominating or subsiding with every capricious turn of fortune, one only has any bearing on the question. For, as has been said before, the question is not one of compliment or precedence; it does not relate to the power of the sovereign to gratify a morbid and spurious appetite for vulgar notoriety by a mongrel title, or to reward vice by flattering the abject vanity of some frivolous prostitute; it relates to his power of giving a share in the legislation of England without that guarantee for independence which, during four hundred years, has been thought essential to its exercise. Now, in the case of Sir John Cornewall, who was created Lord Fauchope for life, the prerogative was exercised with the assent of the House of Lords. There remains, therefore, the solitary case of Lord Berners, in the reign of Henry VI.—a case that is extremely doubtful—to justify this exercise of the prerogative in the year of grace 1856. If, then, law is to be controlled or modified by usage—if the “lex et consuetudo Parliamenti” are not to be put aside—it must be admitted that, even in the absence of any negative argument, the right of the Crown is extremely questionable, in spite of the dictum of Lord Coke, and of the writers by whom he has been copied. Lord Coke, it may be remembered, has fallen into acknowledged errors. He was wrong in asserting that a justice of peace had no power of holding a person accused of felony to bail. He was wrong in asserting that common law ought to prevail against the express words of an Act of Parliament. But there _are_ strong negative arguments. In Lord Purbeck’s case, which was argued before the celebrated Lord Shaftesbury, who was certainly not ignorant of the principles of the constitution, it was stated by the Attorney-general that the king could create a peer for life. This doctrine was at once questioned by Lord Shaftesbury; and in that opinion Lord Nottingham, the creator of equity, though differing with him as to the case immediately before him, acquiesced.

It is difficult for any one who weighs these arguments to resist the conclusion at which Lord Lyndhurst and Lord Campbell, Lord St Leonard’s and Lord Brougham—laying by on an occasion of such vast importance all party differences and political hostility—have arrived, that an instrument made four hundred years ago, before the constitution had been made, before the disposition, occasions, circumstances, the moral, civil, and social habits to which that noble fabric owes its existence had disclosed themselves, cannot in the eye of reason justify a violent change in the long-established, the peculiar, and the distinguishing character of the House of Lords.

There is (_Parl. Hist._, vol. i. page 890) a remarkable case which has never been cited, we believe, and which shows that the House of Lords exercised the right of excluding an unworthy member from its deliberations. It is the case of Lord De la Ware in the reign of Edward VI. “He had attempted to poison his uncle, and was by an _order of Parliament_ excluded from any estate or honour that might come to him after his uncle’s death.” The precedent in favour of the Crown dates from a period far more remote than this. If the Crown quote the fifteenth century, why may not the House of Lords quote the sixteenth? And it should be remarked that this is a prerogative which there must have been constant motives for using, and the non-exertion of which, therefore, furnishes a very cogent argument against its existence. Harrington, in his _Oceana_, particularly censures Richard II. under the name of Adoxus, for creating peers “who had hands to dip in the royal purse, but no shoulders to support the throne.” We know what became of that prince and his newly-made Caryatides. Our peers are not to perform the functions Virgil assigned to our fathers—

“Purpurea intexti tollant aulæa Britanni.”

They are not to be courtiers, or geologists, or engineers, or builders of crystal palaces, or presidents of councils of art, or even judges, but _legislators_, mediators between the Crown and the people—an office that may dignify the greatest abilities, and satisfy the most generous ambition.

We come now to the second branch of the question, how far such a measure can be considered constitutional,—meaning by that, how far it is in conformity with the spirit and genius of that form of government to which we owe, during so many ages, and during so many vicissitudes, the tranquil possession of political freedom. Certainly the time chosen to cut one of the strands of the cable of our anchor is a singular one. Freedom, with the exception of the countries governed by the King of Sardinia, has been overthrown or undermined in every part of the continent of Europe. Nobody can doubt that a main cause to which the present condition of France is to be attributed, is the want of a body of hereditary legislators; the want, that is, of a powerful aristocracy,—in other words, of a House of Lords. Nobody can doubt that the forlorn troop of servile beggars distinguished throughout Germany by the titles of Earl, and Baron, and Freihern, is a main reason why all attempts to establish constitutional freedom in that country have only served to illustrate the most ludicrous ignorance of human affairs, coupled with the most abject tergiversation, and to drag to light projects, compared with which the principles by which the Caffres are governed may be considered luminous, and the whims of the politicians of Laputa may pass for reasonable. We object to any scheme for Germanising England. We should be sorry to see the influence of the Court, where we now see other hopes and objects. We should be sorry to see the varied elements of our social state crushed into one undistinguished mass of servitude. Our universities have been tampered with; the next attempt is on the House of Lords. It is the fashion to speak lightly of representative government. “A weak man doth not well consider this, and a fool doth not understand it.” The disgust and contempt felt throughout France for the corruption and time-serving of the mongrel House of Peers, consisting of misplaced men of letters, venal courtiers, affected artists, hireling writers in the daily press, shallow coxcombs, and a few besides of illustrious names—the last scattered like the nails in a wall over a wide blank surface—account for the sympathy with which all reasonable men hailed its annihilation. Such an institution as our House of Lords may be destroyed, but cannot be created; and with these examples staring us in the face, and loudly forbidding the attempt, in defiance of reason and of experience, in contradiction to the sound feelings of the nation, an old prerogative that has, “like unscoured armour, hung by the wall so long,” that the announcement of its existence may furnish a question perhaps for the amusement of antiquaries of much leisure and little thought, but which, to all real purposes, has become as obsolete as writing pure English—is made the instrument of changing, at the will of the Sovereign, a fundamental part of our constitution. This is done, too, during a war, when great political alterations are usually suspended, as if it were the merest trifle, not worth attention or debate, amounting to nothing more than, and quite as much of course as, the appointment of some commission to recommend the maintenance of all the wretched chicane by which the course of justice in England has been so long impeded. Some knowledge of the constitution which he proposes so presumptuously to violate, some little acquaintance with the great writers who have dwelt upon its excellences, and held them up to the gratitude of posterity, would be a useful ingredient in the composition of a Chancellor. Some knowledge of history (we mean of course English history) might, on the eve of so perilous an undertaking, be found serviceable to the lawyer who (whatever be the mysterious influence under which he acts, and no doubt in perfect unconsciousness) sets himself to work to pull down in cold blood, and with the blandest countenance, one of the safeguards of our liberties. For, with deference to such authority, we look upon the privileges of the Peers as conferred upon them for the public good. To suppose them given or kept for any other purpose, would be a narrow and unworthy view. If they are inconsistent with that object, they cannot be swept away too soon. If they contribute to it, they cannot be too religiously preserved. For four hundred years, during which the parts of our balanced government have been made to harmonise with and give mutual aid to each other, the deliberate opinion of ages and generations in this country has been in favour of their existence. It is a fair inference that all these writers, historians, and statesmen, have not been wholly destitute of political sagacity, or in a conspiracy to promote abuse. It is a fair inference that a measure which Lord Grey repudiated, which Mr Pitt would not hear of, which Mr Fox would have scouted with every expression of scorn that his vehement nature could have found in his copious vocabulary, is a rash and unconstitutional experiment. But we know what the class (unfortunately it is a numerous one) is who “rush in where angels fear to tread;” we know, too, that the gloom which enveloped these great statesmen has been dissipated by the light which has flashed with such marvellous lustre upon my Lord Cranworth. It is hard upon this land that admitted mediocrity should be no safeguard against reckless extravagance. If, in the days when the wild hurricane of Reform was sweeping over us, some man of an irregular but powerful intellect had, in a moment of irritation and disappointment, suggested such a measure, we should have consoled ourselves by reflecting that inundations atone for the mischief they inflict by the fertility they occasion. We should have accepted the benefit, and been on our guard against the evil. But when a grave commonplace sober gentleman, decent to a fault, by no means of an ardent or romantic disposition, misled by no passions, carried astray by no impetuosity, not intoxicated by learning, carefully and effectually guarded by provident nature against the dangers to which genius is exposed when such a person reverses the famous line, and in a paroxysm of impotence, raging without strength, and overflowing without fulness—“precipitately dull” and dispassionately mischievous—mimics the freaks and caprices for which inspiration only can atone, Heraclitus might laugh at his distempered activity, and Democritus weep for the fate of the country in which he legislates. The line—

“Ut lethargicus hic, cum fit pugil et medicum urget,”

describes him. There is no hope, says an acute writer, for the lover of an ugly woman. There is as little for those who suffer by the absurdities of a commonplace man. “Whenever you commit an error, Mr Foresight,” says the wit in _Love for Love_, “you do it with a great deal of prudence and discretion, and consideration.”

It should be recollected that there are many prerogatives of the Crown which, if exercised injudiciously—that is, unconstitutionally—would soon become intolerable. The Crown has the undoubted power of making peace or war; but if Ministers were to agree that York should be occupied by a Russian garrison for ten years, or that we should pay a tribute to Russia for that time, would it be any argument in favour of such clauses that the Crown had only exercised its undoubted prerogative? The Crown has the power of pardoning offenders; would that justify the pardon of every offender as soon as he is convicted? Many persons think that the Crown has never lost the power which it once most unquestionably possessed, of raising the denomination of the coin; is there any maniac, even among the worshippers of Ruskin, who would counsel such an experiment? The prerogatives of the Crown, even when most unquestionable, must be exercised in conformity with the spirit of the constitution. It is the peculiar character of our constitution that it contains within it the three great principles of monarchy, aristocracy, and democracy, blended together so intimately, yet perhaps so inexplicably, that the Crown has no strength, except in connection with the aristocracy and the people: the aristocracy is nothing when opposed to the Crown and the people; and the people have little power, if abandoned by the aristocracy and the Crown. Fortunate indeed have been the circumstances which enabled our fathers to complete this mysterious union. The strength of our system is its harmony. Take away the beauty of its proportions, and its energies are at an end. That amazing system, the work not of giddy choice and tumultuous violence, but of the “author of authors,” Time, with enough military vigour for war, with enough civil influence to make military power in time of peace impracticable, with the checks apparently so hostile, in reality so much in unison, as to make it the most perfect moral machine that ever was contrived to perpetuate freedom among a people—would be violated and destroyed by any such organic innovation.

What promises can exceed its performance? And it is this which, for the sake of putting a special pleader among the Law Lords, or of satisfying the vulgar ambition of a few discontented men, ignorant of their proper sphere, we are about to put in jeopardy. Does any man think that the power of the Crown is too little in the House of Lords? Is not the reverse notoriously the truth? Is not the influence of the Crown over the Bishops, who are not Peers but Lords of Parliament, matter of just complaint? Would not the power of the Crown be increased by creating Peers for life? Would it not, especially in a country where a vulgar appetite for technical rank is but too conspicuous, increase the number of those who would gain by subserviency to the Crown in that assembly? If you suddenly shift the ballast, your vessel will soon be under water—

“Quamvis pontica pinus
Sylvæ, filia nobilis
Jactes et genus et nomen inutile.”

On the other hand, if the creation of life-peers would give too much influence to the Crown, beyond all doubt it would give a most invidious distinction to those already ennobled families, among whom the son of the mechanic may now hope to take his place. It would tend to make them a separate caste, cut off (we speak of what must happen in less than a century) from the sympathies of their fellow-citizens. Such a state of things could not long continue.

It is but too deeply rooted in the nature of man to press social distinctions too far, and insist on them too much. And could anything be devised to swell the pride of a hereditary Peer more effectually than the sight of upstart counterfeits, bearing the same title with himself, but distinguished, nevertheless, by an everlasting badge of inferiority? The classes and professions from which such peers were taken would share in their degradation, and in the hostility which it would inspire—

“Touch them with several fortunes,
The greater scorns the lesser....
Raise me this beggar, and deny’t that lord—
The senator shall bear _contempt hereditary_.”

Much, no doubt, may be said about the dangers and evils of unworthy successors to great names. Taken separately, such arguments are powerful; taken with reference to a collective body, they are weak. The question is—on which side does the balance of good preponderate? Along with many evils, and great tendencies to abuse, there are many advantages in hereditary honour. A true natural aristocracy is an essential part of any large body rightly constituted. “It is formed out of a class of legitimate presumptions, which, taken as generalities, must be admitted for actual truths. To be bred in a place of estimation; to see nothing low or sordid from one’s infancy; to be taught to respect one’s self; to be habituated to the censorial inspection of the public eye; to look early to public opinion; to stand upon such elevated ground as to be enabled to take a large view of the widespread and infinitely diversified combinations of men and affairs in a large society; to have leisure to read, to reflect, to converse; to be enabled to draw the court and attention of the wise and learned wherever they are to be found; to be habituated in armies to command and obey; to be taught to despise danger in pursuit of honour and of duty; to be formed to the greater degree of vigilance, foresight, and circumspection in a state of things where no fault is committed with impunity, and the slightest mistakes draw on the most ruinous consequences; to be led to a guarded and regulated conduct from a sense that you are considered an instructor of your fellow-citizens in their highest concerns; to be employed as an administrator of law and justice, and to be thereby among the first benefactors, to mankind;”—such is Mr Burke’s argument in favour of a hereditary aristocracy. As a sole or even a predominating element, it degenerates into an insolent domination; as an ingredient, tempered, controlled, and subdued by others, it has, in our opinion, a dignified and refining influence. And here we may remark, that almost the sole barrier to despotic power in France for many years was the firmness and integrity of its parliaments, which were in fact, though not in name, an hereditary aristocracy. Let any one compare the proceedings of that body with those of Louis Philippe’s peers, and then say on which side the balance of good predominates. The cautious and traditional wisdom of those great bodies interposed often between the people and their oppressors. Machiavelli speaks of them with admiration and respect; and their functions were well expressed by a First President of the parliament of Provence, when he said to the king, whom he resisted—“Souffrez, sire, qu’ avec peine, haine, et envie nous défendions votre autorité.” One of the worst acts of a bad reign was to substitute for this great aristocracy, which, with all its faults, had done great services to its country—holding the mean “inter abruptam contumaciam et deforme obsequium” with singular judgment—a set of political adventurers, called the Parliament Maupeou, many of them the mere creatures of the court and Madame Dubarri, and nevertheless welcomed to their new office by the approbation of the shallow conceited writers of the day. The pretext was a better administration of justice—“Le préambule s’exprimait dans un langage que n’eussent pas désavoué les philosophes sur la nécessité de _réformer les abus dans l’administration de la justice_.” “Absit omen!” Then purity of justice was the pretext of a tyrant; now it is that of a few sottish and purblind democrats. The result in France is known to every one who has read Beaumarchais, who in his celebrated Mémoires branded the turpitude and gross corruption of this newly constituted body with ineffaceable infamy. Then France began to see the difference between the minions of a court and a hereditary assembly, between the d’Aguesseaus, and the Goezmans, who were in their place; and in spite of Voltaire, they agreed with Mabli, that the old parliament was better than the “Parlement Postiche.” To this fact we will add the prophetic remark of Montesquieu, “Le pouvoir intermédiaire subordonné le plus naturel est celui de la noblesse; elle entre en quelque façon dans l’essence de la monarchie, dont la maxime fondamentale est, Point de monarque, point de noblesse—point de noblesse, point de monarque—_mais on a un despote_!” Is there no danger that, if the House of Lords is lowered, the House of Commons may ruin itself by its own excessive power?

The question, however, now is, not whether you will establish a hereditary peerage, but whether you will take away from it its stability?—it is not, whether you will abolish the House of Lords, but whether you will run the risk of polluting it by time-servers? Have there been no times in our history when the exercise of such a prerogative as is now claimed for the Crown would have been most dangerous? If James II. had imagined that such authority belonged to him, can any man doubt that he would have filled the House of Lords, as he did the bench of justice, with his Roman Catholic dependants? Is there not reason to believe that, as each party predominates, it will flood the House of Lords with these creatures of a day, to confirm its own ascendancy? Would the minister who created at once twelve peers to ratify the Peace of Utrecht have been satisfied with so limited a number, if so convenient a method as has now been discovered had presented itself to him? If peerage for life had been created, or even if the Lords had been menaced with such a measure, the motion for taking the Address into consideration, on the 23d Nov. 1685, would never have been carried without a division; nor would the dignified and manly language held in that House have offered so striking a contrast to the pitiful and abject tone and demeanour of the subservient House of Commons. As it was, Lord Sunderland is reported to have said that, to carry the measures of the Court, he would make Lord Churchill’s troop of guards peers. But he recoiled, base as he was, from such an attempt; and are we to legislate on the conviction that we shall never again have a bad king and an unscrupulous ministry, and that the firmness and independence of the House of Lords can never again be of any service to the constitution? Can we foretell that there may not be other battles to be fought, and other victories to be won? The attempt to make the hereditary peers a caste by another Lord Sunderland, was baffled in the reign of George the First; we trust that an attempt, which must have the same effect if it succeeds, and which must, moreover, strengthen the influence of the Crown, among a body where it needs no strengthening, will not prosper in the reign of Queen Victoria. To change the relations of the several parts of the constitution to each other, is to make the lessons of history, purchased as they have been with the best blood of our fathers, unavailing. The character of the House of Lords is, that the honours of those who sit and vote in it are hereditary. It is so described by Whigs and Tories, by lawyers and historians. It is in consequence of that character that it has filled a wide space in history, and that it is supported by a thousand time-hallowed associations. Fill it with the nominees of a minister, it will no longer serve to interpose any obstacle to the inconsiderate legislation which an impetuous democracy is sometimes rash enough to insist upon. It may serve to gratify the vanity of women, or of men as little fitted as women to control the destinies of nations; it may provoke hostility by distinctions, invidious when they are manifestly useless; it may even register the edicts which it will be unable to dispute: but its genuine functions will be gone for ever; and if ever the time should come when its energies are required to serve either Crown or people, they will be of as little account as those of the French Chamber of Peers in the hour of trial, and of as little benefit to themselves and to their country.

Why, then, should we unhinge the state, ruin the House of Lords, and pursue confusion, to guard against an evil which, if it exists at all, may be encountered by a far more specific and appropriate remedy? Wise, indeed, should he be who should endeavour to recast a constitution which has defended us alike from the unjust aggression of power, and the capricious tyranny of the multitude. But if our rulers are weak, and our councils infatuated, in the words of an old writer, we can only pray that the Lord will enable us to suffer, what He by miracle only can prevent.

THE WENSLEYDALE CREATION.

At a time when the attention of the nation is almost exclusively directed to the colossal struggle in which Great Britain has taken so conspicuous a part—when the deepest anxiety is felt regarding the issue of the conferences at Paris, which must have the effect either of restoring peace to Europe, or of rendering the contest more desperate in its character than before—we were surely entitled to expect that no attempts would be made, at least by Her Majesty’s advisers, to alter or innovate any acknowledged part of the fundamental constitution of the realm. It is with great pain that we feel ourselves called upon to denounce such an attempt, which appears to us not the less dangerous because furtively made, and seemingly insignificant of its kind. All permanent innovations, all great changes and revolutions, may be traced to a very trifling source. The whole constitution of a country may be overthrown in consequence of some narrow departure from its fundamental rules—a departure which possibly may appear at the time too trivial to demand remonstrance, but which, being drawn into a precedent, may, in the course of years, be the means of producing the most serious and disastrous effects. The tree that could have withstood the blast of the wildest hurricane, will become rotten at the core, if the rain can penetrate to its bole, even through a miserable crevice. The dykes of Holland, which defy the winter storms, have, ere now, yielded to the mining of that stealthy engineer, the rat, and provinces have been inundated in consequence. And, therefore, it well becomes us to be jealous of any attempt, however trivial, or however specious—for plausible reasons can always be adduced on behalf of any kind of innovation—to alter the recognised principles of our constitution, or to introduce a totally new element into its framework.

We allude, of course, to the attempt which Her Majesty’s advisers have thought proper to make, at altering the hereditary constitution of the House of Lords, by the introduction of Life-Peers into that body. The question is now being tried in the case of Mr Baron Parke, who has been created Baron Wensleydale, without remainder to heirs; and it is impossible, looking to the attendant circumstances, to avoid the conclusion that this creation has been deliberately made, for the purpose of establishing a precedent for opening the doors of the highest deliberative assembly to a new order of nobles, who are not to have the privilege of transmitting their rank and titles to posterity. For, if the only object had been, as is alleged, to recruit the numbers of life Lords upon whom the task of hearing and deciding appeals from the inferior courts of the country must devolve, there was obviously no necessity, nor even reason in this instance, for departing from the usual conditions of the peerage. Lord Wensleydale (for so we are bound to call him, in virtue of his patent of nobility from the Queen) is a man of advanced years, and has no son. In all human probability, therefore, the title, even though it had been destined to heirs-male, as is the common form, would become extinct at his death. Want of fortune, as the means of sustaining, in the future time, the social position which a peer ought to occupy, has often been alleged, and with reason, as a sufficient obstacle in the way of the elevation of commoners, distinguished for their acquirements and genius, to the Peerage. It has been said, and with great truth, that the present and fleeting gain is more than counterbalanced by the future and permanent disadvantage. For the acquirements and genius of the man so elevated are but personal, and perish with him—the heirs remain as pauper peers, no ornament to their order, and may, for a seemingly inadequate consideration, be willing to surrender their independence, and use their legislative powers at the bidding of an unscrupulous minister. But, in the present case, where the chance of succession was so small, there could be little room for such an objection; perhaps there was none, for the fortune of Lord Wensleydale may be, for anything we know to the contrary, quite adequate to the maintenance of a peerage; therefore we must hold that this case was selected purposely to try the question. Indeed, supposing that Her Majesty’s advisers were justified in making the attempt to alter the constitution of the House of Lords by the introduction of Peers for life, they could hardly have selected a better instance. For, if it should be decided or declared that there is a limit to the prerogative of the Crown, and that the creation of a peer for life, like Lord Wensleydale, is simply a personal honour, but does not carry along with it the privilege of a seat in the House of Lords, all unseemly questions of precedency will be avoided. In that case it is not likely that the experiment will be renewed; for we may safely conclude that the object of Her Majesty’s advisers in issuing this singular patent was not to gratify Lord Wensleydale by the gift of a barren honour, but to make him a member of the House of Peers, entitled to speak and to vote; and thereby to establish a precedent for the future creation of a non-hereditary peerage.

Before entering into the questions of privilege and prerogative, it may be as well to consider the reasons founded on expediency which have been advanced in behalf of the creation of peerages for life. Such of her Majesty’s ministers as have spoken upon the subject have been exceedingly cautious and guarded in their language. None of them have ventured to assert an opinion that, for the future, it would be advisable to multiply this kind of peerages. Their arguments go little beyond this—that whereas the appellate jurisdiction of the House of Peers renders it necessary that at all times there should be among that body persons intimately acquainted with the law, and qualified to act as judges, it is for the advantage of the country that such creations should be not permanent but temporary, not hereditary but personal. In this there is not only some, but much plausibility. It is of the utmost importance to the country that the highest legal talent should be engaged for the last Court of Appeal; and we are not of the number of those who consider that a court of appeal might be dispensed with. We believe that the consciousness that there exists a tribunal which has the power of reversing or altering their judgments, has conduced more than anything else to stimulate the zeal, activity, and attention of the judges in the ordinary courts of law; and it would be a very hazardous experiment to give an irresponsible character to their decisions. We think also, and we make this admission freely, that some decided steps should be taken for the better regulation of the ultimate Court of Appeal. The House of Peers, as a body, has long since abdicated its right of sitting in judgment, except in some cases peculiar to the peerage. The judicial duties are now invariably devolved upon judicial Peers, that is to say, upon those who have either occupied or occupy the highest judicial offices; and although the form of putting the question to the House, after the opinion of the legal Peers has been delivered, is still observed, no instance of any attempt on the part of other peers to vote, has taken place for a long series of years. Thus the appellate jurisdiction of the House has been confided to a small and fluctuating committee, on whom attendance at the hearing of causes is not compulsory; and although hitherto, as we verily believe to be the case, the judgments have been such as to give general satisfaction, there is no security for the continuance of a sufficiently qualified number of adequate Judges. We think that some other arrangement for establishing and securing a permanent tribunal of appeals should be adopted; but we demur greatly to the plan now proposed of creating life-peerages for the purpose of keeping the jurisdiction within the House of Lords. Very wisely, we think, has it been provided that Judges shall not be eligible to sit in the House of Commons. Their functions being of the utmost importance to the wellbeing and safety of the community, it is above all things desirable that they should not be allowed to mingle actively in that strife of parties, which must, to a certain extent, in very many cases, warp the judgment, or at least give a strong political bias. The judicial atmosphere ought to be not only pure but calm, for so constituted are the human frame and mind, that excitement of any kind is apt to disturb the equilibrium of the judgment, and often suggests hasty views, which will not bear the test of severe and dispassionate investigation. Neither should the attention of a Judge be too much directed to objects alien to his function. Undoubtedly there are minds so active and capacious that they rebel against any restriction of their powers, and go beyond their proper sphere, led away by a craving for intellectual exercise, or under the influence of overpowering ambition. But these constitute the exception, not the rule; and we humbly venture to think that the best judges are to be found among the men who deviate least from the tenor of their way, and who do not devote themselves ardently to other occupations or pursuits. Therefore we have great doubts as to the propriety of the system which would necessarily, to some extent, expose the judge to the influences of the politician, or, at any rate, distract his attention from what is or ought to be the main object and purpose of his life. Besides this, it is not convenient or decorous that there should be anywhere an unpaid tribunal upon which such serious responsibilities devolve. Judges receive salaries in order that they may be compelled to do their work, and overcome that tendency towards indolence from which very few of the human race are altogether free. The salaried Judge must act: he must attend to every case which is brought before him, unless he can allege occasional failure of health, or unless he declines on account of interest or affinity. But a voluntary and unpaid Judge may absent himself at pleasure, and without responsibility—a very serious matter to suitors, and, as we think, inconsistent with the proper administration of justice. For many reasons, therefore, it appears to us that the time has arrived when the supreme appeal court of the realm should be placed upon a footing different from that which has hitherto existed, and that it should be so remodelled as to give it a permanent and responsible character. We have already observed that, as regards the great body of the Peers, their appellate jurisdiction and power is merely a name; and surely it is not worth retaining the shadow when the substance has passed away. There are evidently many deficiencies in the present system. The bulk of appeals are from the Scottish courts; and as the Scotch law differs materially from that of England, being based altogether upon a separate foundation, it is important that at least one Judge, intimately acquainted with the system, and trained to its technicalities, should be a member of the court of last resort. Looking to the present state of the Scottish bar and bench, we must confess that we entertain grave doubts whether any competent lawyer could be found to undertake such a duty for the unsubstantial reward of a life peerage; and we apprehend that no satisfactory or thoroughly efficient arrangement for the determination of appeals from the courts of England, Scotland, and Ireland can be effected, unless based upon the principle of delegating the appellate jurisdiction of the House of Peers to a court, holding its sittings in London, comprising the highest legal talent which can be drawn from the three kingdoms, but not necessarily, in so far as its members are concerned, directly connected with the peerage. Of course, the Judges in such a court of appeal should be, like all other Judges, the paid servants of the State; and we are confident that such a measure, the details of which would be matter of grave consideration, could not fail to be acceptable, and must prove highly beneficial to the country at large. Indeed, it is manifest that some such alteration of the law is now peremptorily required; as it is upon the inconvenience and insecurity of the working of the present system of appellate jurisdiction, as vested nominally in the whole body of the House of Peers, that the main arguments in favour of what we must consider as a dangerous attempt to destroy the hereditary constitution of the Upper House have been founded.