Miscellaneous Writings and Speeches - Volume 4 by Thomas Badington Macaulay (e ink ebook reader txt) 📕

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?

But, says the honourable Member for Montrose, the Master of the Rolls has duties to perform which, if properly performed, will leave him no leisure for attendance in this House: it is important that there should be a division of labour: no man can do two things well; and, if we suffer a judge to be a member of Parliament, we shall have both a bad member of Parliament and a bad judge.

Now, Sir, if this argument proves anything, it proves that the Master of the Rolls, and indeed all the other judges, ought to be excluded from the House of Lords as well as from the House of Commons. But I deny that the argument is of any weight. The division of labour has its disadvantages as well as its advantages. In operations merely mechanical you can hardly carry the subdivision too far; but you may very easily carry it too far in operations which require the exercise of high intellectual powers. It is quite true, as Adam Smith tells us, that a pin will be best made when one man does nothing but cut the wire, when another does nothing but mould the head, when a third does nothing but sharpen the point. But it is not true that Michael Angelo would have been a greater painter if he had not been a sculptor: it is not true that Newton would have been a greater experimental philosopher if he had not been a geometrician; and it is not true that a man will be a worse lawgiver because he is a great judge. I believe that there is as close a connection between the functions of the judge and the functions of the lawgiver as between anatomy and surgery. Would it not be the height of absurdity to lay down the rule that nobody who dissected the dead should be allowed to operate on the living? The effect of such a division of labour would be that you would have nothing but bungling surgery; and the effect of the division of labour which the honourable Member for Montrose recommends will be that we shall have plenty of bungling legislation. Who can be so well qualified to make laws and to mend laws as a man whose business is to interpret laws and to administer laws? As to this point I have great pleasure in citing an authority to which the honourable Member for Montrose will, I know, be disposed to pay the greatest deference; the authority of Mr Bentham. Of Mr Bentham's moral and political speculations, I entertain, I must own, a very mean opinion: but I hold him in high esteem as a jurist. Among all his writings there is none which I value more than the treatise on Judicial Organization. In that excellent work he discusses the question whether a person who holds a judicial office ought to be permitted to hold with it any other office. Mr Bentham argues strongly and convincingly against pluralities; but he admits that there is one exception to the general rule. A judge, he says, ought to be allowed to sit in the legislature as a representative of the people; for the best school for a legislator is the judicial bench; and the supply of legislative skill is in all societies so scanty that none of it can be spared.

My honourable friend, the Member for Surrey, has completely refuted another argument to which the noble lord, the Member for Kent, appears to attach considerable importance. The noble lord conceives that no person can enter this House without stooping to practice arts which would ill become the gravity of the judicial character. He spoke particularly of what he called the jollifications usual at elections. Undoubtedly the festivities at elections are sometimes disgraced by intemperance, and sometimes by buffoonery; and I wish from the bottom of my heart that intemperance and buffoonery were the worst means to which men, reputed upright and honourable in private life, have resorted in order to obtain seats in the legislature. I should, indeed, be sorry if any Master of the Rolls should court the favour of the populace by playing the mounttebank on the hustings or on tavern tables. Still more sorry should I be if any Master of the Rolls were to disgrace himself and his office by employing the ministry of the Frails and the Flewkers, by sending vile emissaries with false names, false addresses, and bags of sovereigns, to buy the votes of the poor. No doubt a Master of the Rolls ought to be free, not only from guilt, but from suspicion. I have not hitherto mentioned the present Master of the Rolls. I have not mentioned him because, in my opinion, this question ought to be decided by general and not by personal considerations. I cannot, however, refrain from saying, with a confidence which springs from long and intimate acquaintance, that my valued friend, Sir John Romilly, will never again sit in this House unless he can come in by means very different from those by which he was turned out. But, Sir, are we prepared to say that no person can become a representative of the English people except by some sacrifice of integrity, or at least of personal dignity? If it be so, we had indeed better think of setting our House in order. If it be so, the prospects of our country are dark indeed. How can England retain her place among the nations, if the assembly to which all her dearest interests are confided, the assembly which can, by a single vote, transfer the management of her affairs to new hands, and give a new direction to her whole policy, foreign and domestic, financial, commercial, and colonial, is closed against every