House should ever be so remodelled as to carry with it increased weight in the country, it should be entrusted with the same powers of control and revision in matters of finance that are possessed by the American Senate. The evils, however, that might in this department be feared in England from the omnipotence of the House of Commons have been greatly mitigated by two facts. The one is, that a very large proportion of the taxes of the country are permanent taxes, and are, therefore, not the subjects of annual debates. The other is the rule of the House of Commons, which I have mentioned in a former chapter, that no petition, and no motion for a grant or charge upon the public. revenue, can be received unless it is recommended by the ministers of the Crown. Though this rule, giving the responsible ministers the sole right of proposing taxation, rests upon no law, but simply on a standing order of 1706, it is no exaggeration to say that it is one of the most valuable parts of the British Constitution. In the great changes that have taken place in the disposition and balance of powers, many of the old constitutional checks have become obsolete, inoperative, or useless; but the whole tendency of modern politics has only increased the importance of the provision which places the initiation in matters of finance exclusively in Government hands. In the present state of Parliaments, and with the motives that at present govern English public life, it is difficult to exaggerate either the corruption or the extravagance that might arise if every member were at liberty to ingratiate himself with particular classes of interests by proposing money grants in their favour.

The exclusion, however, of the House of Lords from every form of financial control naturally deprived it of its chief power in the State; and it is still further

weakened by the fact that the creation and overthrow of ministries rest entirely with the other House. In the theory of the Constitution, the sovereign chooses the head of the Government, but, except in the very rare cases of nearly balanced claims, the sovereign hast no choice. The statesman whom the dominant party in the House of Commons follow as their leader is irresistibly designated, and, if he is overthrown, it must be by the vote of the House of Commons. Since the resignation of Lord Grey in May, 1832, no ministry has resigned in consequence of a hostile vote of the Lords.

Some other changes may be noticed in the position of the House. In addition to its legislative functions, it is the supreme law court of the country, and this very important privilege has been the subject of extraordinary abuses. It is not here necessary to enter at any length into the curious and intricate history of this power. It seems to have grown out of the right the peers once possessed, as counsellors of the King, to receive petitions for the redress of all abuses; but it was fully organised in successive stages, and in spite of much opposition from the House of Commons, in the sixteenth and seventeenth centuries. The right of hearing judicial appeals extended to all the peers, even to those who were perfectly unversed in matters of law; and for considerable periods after the Revolution, and especially in the reigns of George II. and George III., the Chancellor sat alone in the House of Lords, sometimes to hear appeals from himself, though two lay peers had to be formally present in order to make the requisite quorum. Somers, Hardwicke, Thurlow, Mansfield, and Eldon have all heard appeals in this fashion. After this time lawyers multiplied in the

VOL. I.

1 May's Const. Hist. i. 247.

27

House of Lords, and the appellate jurisdiction was placed by custom exclusively in their hands; though in the case of O'Connell, when party passions were strongly aroused, there was for a short time some danger that the lay lords would insist on their right of intervening. The efficiency of the highest Court was entirely a matter of chance. The Chancellor was usually a good lawyer, but it has sometimes happened that a considerable portion of the remainder of the tribunal consisted of lawyers who, though they had been in their day very eminent, were now suffering from all the debility of extreme old age, and appeals were notoriously from the more competent tribunal to the less competent one.

It seems strange that this state of things should have been so long tolerated; but, in truth, the English people, though they have always been extremely tenacious of their right of making their own laws, have usually been singularly patient of abuses in administering them. They bore during long generations ruinous delays of justice which were elaborately calculated to prolong litigation through periods often exceeding the natural duration of a lifetime; enormous multiplications of costly and useless archaic forms, intended mainly to swell the gains of one grasping profession. They have suffered judges whose faculties were notoriously dimmed by the infirmities of extreme old age to preside over trials on which lives, fortunes, and reputations depended; and even now this profession, which, beyond almost any other, requires the full clearness, concentration, and energy of a trained intellect, is exempt from the age limit which is so severely imposed on other classes of Civil Servants. It is quite in accordance with this spirit that they should have long endured, with scarcely a murmur, such an appellate jurisdiction as I

have described. English writers often dwell, with just pride, on the contrast between the political freedom enjoyed in Great Britain and the political servitude that existed in France in the eighteenth century. If they compared, in their judicial aspects, the House of Lords of that period with the Parliament of Paris, the comparison would be much less flattering to the national pride.

The extremely unsatisfactory condition of the House of Lords, considered as the supreme tribunal of the country, was acutely felt in the present century, and the opinion grew in ministerial circles that the best way of strengthening it was by introducing into the House a certain number of lawyers as life peers. The Cabinet of Lord Liverpool at one time resolved upon this step, but Lord Liverpool himself changed his mind, and it was abandoned. In 1851, Lord John Russell offered a life peerage to an eminent judge, but it was declined;1 but in 1856 the Government of Lord Palmerston took the startling step of creating by royal prerogative Baron Parke a life peer, under the title of Lord Wensleydale. The fact that he might just as well have been made an hereditary peer, as he was considerably past middle life, and had no living son, gave an unmistakable significance to the creation.

As is well known, the attempt was successfully resisted by the House of Lords. The opposition was led with masterly ability by Lord Lyndhurst, and, with the exception of a not very powerful Chancellor, it was supported by all the law lords in the House. It was acknowledged, indeed, that such peerages had been made in remote periods of English history, and that Coke, and Blackstone following Coke, had asserted their le

See a speech of Lord Granville in the debate on Lord Wensleydale's peerage, February 7, 1856.

gality; but the supporters of the measure were compelled to admit that for the space of 400 years no commoner had been introduced into the House of Lords by such a patent as that of Lord Wensleydale. There had, it is true, been a few peerages for life conferred upon women. It was a dignity which seems to have been specially selected for the mistress of the King, and Charles II., James II., George I., and George II., had in this way raised their mistresses to the peerage. Since the creation of the Countess of Yarmouth by George II., however, there had been no peerage of this kind; and a life peerage conferred on a woman introduced no one into the House of Lords. The only other attempt to establish a modern precedent was derived from the fact that the sovereign possessed, and exercised, the power of conferring peerages on childless men, with remainders to relations to whom they could not, without special permission, have descended. It was obvious, however, that this formed no real precedent, for it was Nature, and not patent, that prevented these peers from transmitting their peerages in the usual way.

The legal maxim, Nullum tempus occurrit regi, was quoted in defence of life peerages; but in spite of it the lawyers contended, as it seems to me with good reason, that a prerogative which had been for 400 years unexercised, and which was exercised only at a time when the position of the sovereign and the aristocracy in the Constitution was utterly different from what it now is at a time when it was not unusual to summon to the House of Lords commoners who were married to peeresses to represent their wives-at a time when the House of Lords was able, of its own authority, to select a Regent for the kingdom, ought not to be revived by a mere act of power.