310

WE

ART. XI.—THREATENED COUP D'ETAT.

E adopt the name, though a foreign one, given by Lord Campbell to the strange proceeding threatened in the House of Commons-of setting the law at defiance, and passing a resolution that Baron Rothschild should sit without making the declaration prescribed by statute. His Lordship most properly left the less important duties of his circuit, to give a salutary warning against such a proceeding. It came with peculiar weight from him, both because of his judicial station, and because he has ever been a supporter of the Jew Bill, and because no one ever showed more zeal in behalf of Parliamentary privilege—a zeal indeed which, we believe, has long been admitted to have excluded the bounds of sound discretion. We can have little doubt that his advice will be attended to, the more especially as the other law lords manifestly took the same view of the subject, Lord Brougham expressing that opinion, though never carrying so far the doctrine of privilege, and the Lord Chancellor, Lord Lyndhurst, and Lord Wensleydale assenting to the Lord Chief Justice's statements. The distinct refusal of Lord Palmerston to countenance any such course, is also to be regarded as likely to weigh with many who might be inaccessible to the reasoning of lawyers. We may, therefore, assume that the attempt will not be persisted in ; but as the arguments in its favour, how fallacious soever, have gained no little credit with many of the Liberal party, it is fit that we show how entirely Lord Campbell's views are supported by every consideration, both of a legal and a constitutional kind.

We begin by entirely laying out of our view the question whether the words, "on the true faith of a Christian," are an essential part of the declaration, or only a mode of swearing. There is a good deal of force in the arguments of those who maintain the latter opinion. But we will even admit that they are in the right, and that the judgment of the courts, in which all the judges save one concurred, is wrong; still it is, until reversed, the authoritative declaration of the law, and by its force and effect, whoever shall be present in the House while a vote is taken, in

curs a penalty of £500. There are perhaps a score of questions each sitting put to the vote; and the penalty of £10,000 is thus incurred by any one present during that time. Manifestly, whoever is prepared to support the resolution suggested, must also be prepared to protect the party acting under it; and this he can only do by supporting either a bill of indemnity or a vote of money to pay the penalty and costs, or a proceeding of mere violence to prevent the law from taking its course. To the two first modes there is the plain objection, that without the consent of the House of Lords they are impossible-to the third, that it means a conflict between the Commons on the one hand, and the law, its courts, and its ministers on the other; with the people either wholly indifferent, as in the present case they might possibly be, or leaning strongly in favour of the law and the constitution, as they almost always do when they fully comprehend the matter in controversy, and have time allowed for reflection on the reasons urged.

Now it is fit that we shortly consider these reasons, and we at once take that which seems, by its plausible aspect, to have had most power in seducing those appealed to. It is said that the Lords refused to admit Lord Wensleydale on the ground of being the only judges of their own privileges; and that the Commons, for the same reason, have a right to admit Baron Rothschild. There really cannot be a greater fallacy. The law says, that there is no such thing as a peerage for life, and therefore no person, claiming as a peer for life, can by law sit in the House of Lords. The law also says, that there is no such thing as a representative not elected; and therefore no one sent to the House of Commons otherwise than as chosen by some body having the right of election, can by law sit in the House of Commons. If the Lords had determined that Lord Wensleydale should sit without any title by creation or by descent, they would have done an illegal act, as would the Commons if they suffered a person, not elected, to take his seat. But it is equally an illegal act to admit a person who has not the statutory qualification, whether that consists in taking a certain prescribed oath, or on having a certain age, or in possessing a certain property; and if there were penalties attached by

law to voting under age, or voting without property qualification, those penalties might be recovered at law upon proof of the facts; nor could any resolutions of the House exempt the penalties, and for the plain and obvious reason, that no resolution of either House-nothing but an act consented to by King, Lords, and Commons, can repeal or suspend an enactment regularly made by the same supreme authority.

The reference to the case of Mr. Pease rests upon no better ground. An act was passed in 1749 (22 George II., c. 46, s. 30), providing that where an oath is required to be taken, in any court or other place, a Quaker may affirm instead of swearing. The Commcns directed the affirmation to be taken under the authority of this provision. Now if they mistook the law, and an action were brought for the penalties, it would be for the courts to decide whether these had been incurred or not; and Mr. Pease would in vain have endeavoured to protect himself by setting up an order of the House causing the clerk to administer the affirmation. So, in the case of Baron Rothschild, if the House pass a resolution that he may make the declaration, omitting the words "on the true faith of a Christian,” this resolution can be no protection to him should he be sued for the penalties. The argument in the case of Mr. Pease would be idem per idem, but for one material diversity; there has been no judicial construction put upon the statute of George II., and no determination that what was done in the case was illegal. In the case of Mr. Rothschild there has been a determination, because the matter was tried by Mr. Salomons, and the judges all declared the law to be against him. There was then a writ of error brought on that judgment; it is still pending; and, in answer to Lord Campbell's question, the Lord Chancellor intimated that the parties in Salomons v. Miller, had applied to have it stand over for two months, which had been allowed, and therefore it stood for August 15th, too late to be disposed of during the present session. As it is a case in which there can be no doubt that the judges will be called in to assist, and as all but one of them have already given their very unhesitating opinion against the plaintiff in error, there can be no doubt how the decision would be were the case heard.

We, therefore, trust that the House of Commons will not be so rash as to commit itself to a course which will stand condemned as illegal by the highest judicial authorities.

ART. XII. THE MARRIED WOMEN'S PROPERTY

MR.

QUESTION.

R. MONCKTON MILNES, in supporting the second reading of the Bill to amend the law relating to the property of married women, remarked that the speech of Lord Brougham had placed this question on the same footing as the slave trade, and other great social reforms. The observation was a correct one. It is remarkable how much may be done by one bold statement of a grievance to rouse up the spirit to redress it; and it is the opportunities which our parliament affords for demonstrations of this nature, that constitutes its primary value as the protector of all classes in the state. The House of Lords has, of late years, been more useful to people in this respect, than the assembly which is supposed to be peculiarly devoted to their interests; partly because a much less pressure of routine business, and a far greater scarcity of that class of legislators who conceive that the rotation of our planet, and all things ancillary thereto, are maintained by the exercise of their tongues, make the introduction of a subject into the Upper House, by a Peer who has any thing really to say, infinitely easier than is a corresponding achievement by a member of the House of Commons; and partly, that among the Peers is to be found a small band of illustrious men, whose words at all times command respect, and whose unequalled abilities and experience enable them to grapple with difficulties which ordinary men may not unwisely shun. It is a curious fact of the present day, and one which will hardly be appreciated till it has passed away, that two ex-chancellors, both of them having passed the usual period of activity, conduct de facto the reforms of the country; that the amending measures introduced by the government are nearly all mere reproduc

tions of their ideas; and that their aid is generally found necessary for perfecting and preserving against injudicious alterations the bills thus brought forward. It is no wonder, then, that the House which holds those two states:men should be more prolific in projects for reform. Moreover, there is a peculiarity in the mode of dealing with their subjects which marks Lords Brougham and Lyndhurst to an extraordinary degree: what they do they do thoroughly-there is no mistake about it, no beating about the bush, nor mincing the matter. Their speeches often remind us of what Sir William Napier says of the victories of Wellington-they are like the blows of a battering-ram, given once for all; the blow is struck, and down goes the wall. All this is reversed in the Commons, where a subject is half done in the first session, served up cold in the second, and regularly hashed in the third; in whose debates we sometimes seem to have discovered a system of perpetual motion, of that centrifugal character which flies off continually from the centre of gravitation. We never hear the elaborate apologies and timid reservations of an honourable gentleman introducing his hobby to the House-his reiterated assurances that it is not a hobby which can carry much weight, or run too fast or too far, nor observe his meek acquiescence when it is hooted. off the course, or doctored surreptitiously, or even openly hamstrung by the proprietors of rival hobbies, without a feeling of intense wonder that any amount of jockeyship ever brings any honourable member safely to the winning-post. Not that we ought to be ungrateful to the Commons for the real good which they achieve; they probably turn out, on an average, as much work as the machine parliamentary is capable of achieving, especially considering the numerous functions, besides that of substantive enactments, which fall to their share. When we eliminate from the interminable questions, motions, debates, attacks, defences, apologies, recriminations, and what not, the few salutary statutes of a session, we must remember that, if they form but a half-pennyworth of bread to a most intolerable quantity of sack, that is just the morsel of nutriment which our constitution fits us to receive. We are paupers in legislation, and must be content with Union diet; a public man who should