LORD HALSBURY (Centre)
(LORD ESHER, LORD FRY, LORD LINDLEY)
I PAINTED Lord Halsbury among a group of Lords Justices of Appeal sitting in the old Court of Appeal that has been for some time past used as a writing and reading room for counsel.
This chamber constituted one of the most dignified and imposing Courts in the great building at Temple Bar. Its severe and simple character, the bench arched over by a wooden frame, surmounted by the Lion and the Unicorn, which enclosed the Lords Justices and protected them from draughts, made a solemn impression upon me when I first entered it. Their lordships in their full-bottom wigs and watered-silk robes trimmed with gold lace had the effect of being separated from the rest of the world by an atmosphere of mystery of peculiar picturesqueness.
Lord Halsbury was at that time Lord Chancellor, and presided over the court. The attitudes of the Lords Justices seemed to vary according to their rank, the chief among them, the president, the Master of the Rolls, Lord Esher, and Lord Justice Lindley, being very much at their ease, especially the latter, whose wig was always awry, and half concealing a very red face; while those at the two ends of the bench sat upright, wearing their robes with less abandon.
My interest had been aroused first in Lord Halsbury long before, when, as Sir Hardinge Gifford, he was counsel for the plaintiffs in the case Belt versus Lawes. The whole gist of the case was, Can a sculptor issue to the public comparatively indifferent work without being suspected of employing "ghosts" to do it for him? The action should not have been brought. Belt's subsequent conduct leads one to suppose that he expected substantial damages from the defendant, a sculptor whose father was a wealthy man. What the witnesses for the defendant, including the President of the Royal Academy and other artist members, could not see was that the work produced by Belt was of such a commonplace character, that anyone with an atom of ability could easily have done it all, therefore Belt could have done his own work, even if he did employ other men to assist him.
I had a studio next to Belt's, and was in the habit of visiting him frequently to watch the progress of a bust of Lord Beaconsfield, a good likeness, I imagine, but executed in a hard, tight manner. Perhaps he was fooling me, and only pretending to put his little pellets of clay on a head that had already been modelled by one of the "ghosts"; but as he modelled in court, during the trial, a bust that was kept under lock and key when he was not working on it, one must infer that a real spirit helped him, or else that one of those he employed obtained access to the room in which it was locked when the court was not sitting. The jury was satisfied that they saw the clay shaped and fashioned before their eyes into a semblance of the model, and so was I. But it took forty days to decide that a man of ordinary talent could easily model in clay without producing a work of genius. It is customary for busy sculptors to employ men to assist them, modellers, carvers, chisellers, metal workers, etc. The Austrian sculptor Boehm, who possessed no extraordinary ability, employed, I was informed, the young French sculptor Dallou, who was an artist of great talent, if not genius.
If some of Dallou's brilliant touches appeared on the tails and manes of the horses, on their hocks and pasterns, it is not likely that Boehm would have conscientiously cut them out. These assistants become "ghosts" only when their skill exceeds that of their employers.
Many years after this episode, when Sir Hardinge Gifford had taken his seat on the Woolsack as Lord Halsbury, and presided over the law lords who heard the cases that were referred to the House of Lords, Mr. Hugh Capron was dining at Murestead, and during the evening asked if I had seen in the papers the notice of the decision of the House of Lords on the Scottish Church case. He was surprised to hear me answer "No," and to follow it by asking what it was about. Shortly he recounted the story—how, on a point of doctrine, a small body of clergy and their scanty followers in some of the outlying northern islands of Scotland, had seceded from the body of the Free Church of Scotland, and had laid claim to all the property of the Church, including many millions in funds, all the schools, church buildings and colleges, and pursued that claim into the courts of Scotland, where they had been non-suited on several appeals, and how, not satisfied with the decision in their own courts, they had carried their case to the House of Lords, and there had obtained a reversion of the decisions in the courts in Scotland, and a verdict which carried with it the title to the vast property of the main body of the Church. After hearing this tale, to which Capron added that the Lord Chancellor Halsbury had delivered a weighty argument in favour of the "Wee Frees," as they were called, based on the dogmatism of certain seventeenth-century divines in Holland on Predestination and Free Will, I said, "That decision will require an Act of Parliament to undo."
For the first time, and for a time, I found myself in disagreement with Lord Halsbury, whose career, both judicial and political, I had followed with close attention and interest; and yet I could not restrain a feeling of admiration for a man who was so loyal in his maintenance of a legal principle as to sacrifice justice and right to a point of law involving itself both justice and right. No doubt the "Wee Frees" were in the right as regards the existing legal conditions. Two years afterwards Parliament destroyed the effect of the decision by special enactment.
But this is not the only time that Lord Halsbury supported a minority. If in the first instance he was a consistent supporter on legal grounds of the "Wee Frees," he was in the end a consistent and logical champion of the "Die Hards" and their cause. The two cases were analogous in the gravity and importance of their underlying principles. The "Wee Frees" and the "Die Hards" held tenaciously to tradition; their opponents, in a vast majority, threw tradition and prestige and principles to the winds. The "Wee Frees" rested their claim on the ground that right makes might; the "Die Hards" fought, not for themselves, but for a majority that sought to divest itself from tradition and voluntarily to renounce privilege and power. Twenty-two stalwart peers, with Lord Halsbury as their champion and leader, resisted by every argument that loyal conservatism and constitutional authority could suggest the suicidal proposal to "reform" the House of Lords.
Lord Halsbury had said to me that success at the Bar, and in the political arena, depended very much upon physical strength, upon the power to endure strain and fatigue. That it was so in his case is evident, for he was eighty-five years of age when this unequal struggle in the Upper Chamber, to prevent it from destroying itself, was maintained by a gallant band of twenty-two against six hundred.
Lord Willoughby de Broke was an active lieutenant and aide to Lord Halsbury. He organized meetings with the object of obtaining the moral support of the country against this proposal of self-immolation; and the Morning Post, ever and always the mouthpiece of Conservatism, eloquently supported his efforts. To me the situation was interesting historically and philosophically. The philosophy of government is second only in importance to the practice of Art. There is no such thing as a philosophy of Art, for it is not governed by changeable principles. It is based on unchangeable Nature: Art is a thing to be taken for granted, government is not.
There is but one form of government, whatever the name given to it—monarchy, oligarchy, or republic; there is no such thing as an autocracy or a democracy: the people cannot rule because of their plurality, and an autocrat cannot rule because of his "singularity." In a so-called "autocracy" there is a delegation of power from above; in a "democracy" a delegation of power from below—the many elect a few; the one selects many; and neither the one nor the other can know how much or how often their confidence will be abused.
After many experiments in the arrangement of government in ancient and mediæval times, the Mother of Parliaments decided that the best provision for good government was a constitutional sovereign, with the power of advice only, and two Houses, an upper and a lower, the first hereditary and nominative, the second elective, with certain well-defined powers, the most important being the right of veto by the House of Lords.
The government of the United States was established upon the same principle, under a written Constitution. The House of Representatives holds the position of the House of Commons, the Senate corresponds to the House of Lords, the President and his Cabinet to the Prime Minister and his Ministers. One element is lacking, the sovereign. The system is entirely elective, excepting in the case of the members of the Cabinet, who are nominated by the President. The government of the United States is consequently incomplete, because there is no spiritual head to whom all the people can be loyally attached. But there is one paramount power in the government of the Republic—the Senate: while in England the Second Chamber has already been divested of its powers, and the Commons are fast losing their authority, and autocratic procedure is being usurped by Prime Ministers, the Senate of the United States is reaffirming its rights and privileges under the Constitution, and becoming more potent for good every day. And it would be strange indeed if a nation that organized its government on the principle of rule by the delegates of the people should allow one delegate, even though he be the chief magistrate, to arrogate to himself a preponderating influence in either internal or foreign affairs. In a crisis it may be well for one man to possess almost dictatorial powers, but it is a healthier and saner sign when counsels emanate from the council chamber, and not from the cabinet of the roi de fait.
The following letters were published in the Pall Mall Gazette. Ten years later it is not uninstructive to contrast the strength of the Second Chamber in America with the weakness of the Second Chamber in England.
With a shrieking multitude outside demanding the abolishment of every institution on which civilization is based, including literature and art, it is a little difficult to write rationally or temperately; but encouragement and hope can be found in the reported words of President Harding, addressed to the officers and sailors recently from the deck of the battleship Pennsylvania: "The United States of America does not want a thing on earth which does not rightfully belong to us—no territory, no payment of tribute—but we do want that which is righteously our own, and by the Eternal we mean to have it."
LORD HALSBURY.
To the Editor of the Pall Mall Gazette.
SIR,
It may be well to consider for a moment the qualifications of the man who seems to be destined to save the Constitution of this country from disgrace and ruin.
Lord Halsbury led the minority of seventeen Peers who voted against Lord Rosebery's resolution to abolish the hereditary privilege. In doing so, he simply recognized that man should not be deprived of the benefits which have accrued to him through the working of the laws of nature. His bold and defiant courage at the age of eighty-six is miraculous and awful. His career at the Bar, on the Bench, and on the Woolsack entitle him to the respect and obedience of his fellow-men.
As Lord Chancellor he was the Speaker of the House of Lords during a greater number of years than any of his compeers, and is, therefore, thoroughly competent to lead the House.
As a jurist of nearly sixty years' experience, he is able to defend, with integrity of purpose and singleness of aim, the functions of the second estate of the Realm from the attacks of sycophants and traitors, and the betrayal of cowards.
CONSTITUTIONALIST.
July 25, 1910.
Pall Mall Gazette.
HOUSE OF LORDS REFORM.
To the Editor of the Pall Mall Gazette.
SIR,
The attitude of a portion of the Unionist Press, and of some of the Peers themselves, towards the hereditary principle is far more surprising than the periodical outbursts of defeated Radicals and Socialists against the restraining influence and the usefulness of a Second Chamber. The latter is but the legacy of the extremists in the first congress of the colonists of America and of the revolutionaries in France; the former can only come from a latent fear that concessions to the mob may be necessary to preserve the fabric of the Constitution from decay and ruin.
It might possibly have been wiser, unquestionably it would have been both politic and magnanimous, on the part of the autocrat Tsar of Russia to have listened favourably to the petition of his clamouring subjects on that fateful Sunday morning when they begged loudly for a measure of political freedom; but for Unionists and Royalists to join voices with Socialists and Radicals in the outcry against the most enlightened form of government the world has yet seen, or will ever be likely to see, displays an unpardonable ignorance of history and of human nature.
Consider the Republic of the United States after one hundred and twenty years of trial. The counsels of Thomas Jefferson, the democrat, prevailed over the more subtle insight and foresight of Alexander Hamilton—whose statecraft was estimated more highly by Talleyrand than Napoleon's or Washington's—with the result that aristocratical and hereditary principles were rigorously excluded from the Constitution. In compensation for this exclusion a logical regard for the principle of natural fitness has made the office of Senator almost an office for life, whereby veteran Senators, through repeated re-elections, have been forced, quite naturally, into the aristocratical position; it is only another step to the hereditary. So much for political evolution.
It may now be asked, In what does the Republican system excel the English Monarchical system? No one can truthfully affirm that the temporary President of the United States receives the same degree of loyalty from the two political parties, or from the people at large, as the King of England receives from his subjects: or that the House of Representatives is superior, by the integrity and ability of its members, to the British House of Commons: or that the Senate is as reserved in its legislative action as the House of Lords.
Weigh both systems in the balance, and at once it will be seen that it is not the principle of natural selection—which is hereditary—but the system of artificial election that will be found wanting.
There can be no more certainty of obtaining five hundred good legislators by election than by birth, and the advantages of birth and wealth in the composition of a Second Chamber are clearly shown in a sentence quoted by a former correspondent from Oliver's Life of Alexander Hamilton. It will bear repetition: "His aim was economic: Popular government may secure at a cheap price the services of a large number of men in easy circumstances, of superior education, and of family traditions of loyal service to the State."
J. McLure Hamilton.
February 22, 1910.
THE SINGLE CHAMBER AND ITS DANGERS.
To the Editor of the Pall Mall Gazette.
SIR,
In his speech at Burnley on December 5th Mr. Asquith laid great stress upon the fact that the Veto of the Crown had been dead for two hundred years: and he followed the statement by asking his audience if the country had been any the worse without it. At the present juncture it might be reasonably urged that the government of the country could be better conducted by restoring the function of this technical part of the law of the land.
On the occasion of the inaugural dinner of the Agenda Club, at the Hotel Cecil, my neighbour—a young man—coolly remarked that an autocratic monarch could best solve the problems which are now baffling the ingenuity of both political parties: that party government was no longer either efficient or useful.
This may possibly be an extreme view, but it shows that the reaction against the proposed tyranny of an absolute Single Chamber is violent, and likely to be far-reaching in its effects.
All moderate men should not forget that the framers of the Constitution of the Republic of the United States were not beguiled by democrats of the Jeffersonian type into any such error as Single Chamber government. After long and careful consideration of all known Constitutions, both ancient and modern, they adopted the well-tried system of Great Britain, diminishing nothing, but adding to the fabric the safeguard of the President's veto.
Section 7 of this Constitution reads:—
1. All bills for raising revenue shall originate in the House of Representatives, but the Senate may propose or concur with amendments, as on other bills.
2. Every bill which shall have passed the House of Representatives and the Senate shall, before it becomes a law, be presented to the President of the United States. If he approve, he shall sign it, but if not, he shall return it, with his objections, to that House in which it shall have originated, who shall enter the objections at large on their journal, and proceed to reconsider it. If after such reconsideration two-thirds of that House shall agree to pass the bill, it shall be sent, together with the objections, to the other House, by which it shall likewise be reconsidered, and, if approved by two-thirds of that House, it shall become a law.
Here we have no less than three checks to hasty legislation. And be it also remarked that to pass a bill into a law over the veto of the President a two-thirds majority of both Houses is requisite.
CONSTITUTIONALIST.
December 9, 1910.