The Sun.
London, England, 1860-05-31 00:00:00

VIE HOUSE OF LORDS AND THE

PAPER DUTY.

The Committee which has been appointed to
search for precedents as to the practice of the Lords
and Commons in dealing with Money Bills will
scarcely add much to the statements which Lord
Lyndhurst and Lord Cranworth had previously de-
rived from the only available sources. The general
result of the labours of the Committee may be anti-
cipated
with reasonable certainty, inasmuch as there
is no conclusive authority to support either side of
the controversy. It is the nature of precedents, as
of analogies in general, not to run on all fours with
the decisions which must from time to time be given
on new and unforeseen questions. The fabric of
English law is principally composed of judicial
corollaries and deductions from particular rulings,
which were supposed to involve some general prin-
ciple, and the original doctrine has often under-
gone strange transformations in tho course of the
alternate expansions and contractions which were
required to make it coincide with the equity of
each successive case. The details of Parliamen-
tary jurisprudence have been settled by a similar
process of grappling with special difficulties as
they occurred in practise. The Standing Orders
and Resolutions on Privilege in either House are
neither more nor less extensive in their purview
than the obvious embarrassments and irregularities
which they are intended to avert. The points on
which the two Houses have formerly come in col-
lision are settled by law or custom in so definite a
manner that the same inconvenience is not likely to
recur hereafter. The present dispute or uncertainty
will possibly lead to some fresh resolution on the
part of the Commons, if not to a change in their
legislative forms. No such additional security would
be required if there were a precedent precisely in
point, nor, indeed, would it, in that case, ever have
become necessary to appoint a Committee on Pre-
cedents. It is fortunate that the result of their in-
vestigations will tend to a pacific policy through its
unavoidable vagueness. The zealous admirers of
the Constitution, who are urging the people to rise,
according to the conventional phrase, in what they
call " its might," have probably forgotten that they
are subject to the difficulty of having to prove a
negative. Their opponents may demur to the in-
forence that the Lords are usurping a constitutional
right, because their power had previously been
only exercised at the cost of stone bottle dealers,
and other secondary interests. There is certainly
no instance in which a principal portion of the
Budget has been rejected by the House of Lords;
and, on the other hand, the House of Commons has
never anticipated the occurrence so far as to take
precautions against it. It is worth remarking that
Mr, May, in the useful work which has been re-
peatedly quoted in the course of the discussion,
never contemplates the very difficulty which now
requires a solution. " The functions," he says,
" of the House of Lords in matters of supply and
taxation are reduced to a simple assent or nega-
tive." But it is evident that he refers only to
bills for imposing a tax, and not to those whick
provide for its repeal. The vote which has re-
tained the Paper Duty could never have been
given in the days when the service of the Crown
depended exclusively on the annual grants of
the Commons. The modern practice of imposing
taxes in perpetuity until they are repealed by Par-
liament enabled Lord Derby to prove that the
House could not be accused of rejecting a Bill of
Supply. The members of the Committee may con-
gratulate themselves on the opportunity of ex-
cluding from their consideration three-fourths of
the cases which might at first sight seem to bear
upon the question. The issue which they are to
consider is whether the House of Lords has exer-
cised the power of protecting the consolidated fund
against the improvidence of the Commons.
The antiquarian portion of the inquiry, although
it may interest Lord John Russell, will not occupy
a prominent place in the report. It is not probable
that any amount of research into old Parliamentary
journals would materially extend the information
-which is contained in " Hallam's Constitutional
History." As early as the reign of Henry IV, it is
assumed as a matter beyond dispute that all grants
are made by tho Commons and agreed to by the
Lords. Mr. Hallam supposes, with much proba-
bility, that the grants of the Commons alone im-
posed ao burden on the Peers, and at a still earlier
period the Lords, the Commons, and the clergy
made separate grants which were respectively
binding on the three estates. It was not before
the time of Henry VIII., that grants approximated
to the form of Money Bills, although the rule that
they must invariably proceed from the Commons to
the Lords had already been fully established.
Under Charles I. the Commons began to omit the
name of the Lords in the preamble of Bills of
Supply, and the practice, which has continued to
the present day, has secured from all dispute the
undoubted initiative on which the House of Com-
mons has founded its claim to the exclusive control
of taxation and of revenue. Between the Restora-
tion and the Revolution the Commons resisted
with varying success the claim of the Lords to
make amendments in the Money Bills, which, as it
was admitted, they might either pass or reject;
and, although the pretensions had never been for-
mally admitted, it has long since been established by
a custom unbroken for nearly two cenuries. It was
only in the year 1859 that the Commons first
waived, by a standing order on private bills, that
portion of their privilege which referred to tolls,
to dues, or to other payments for services per-
formed. If a Committee of the House of Lords
makes the smallest alteration in the amount, the
incidence, or the machinery of the most trivial local
rate, the obnoxious provision can by no possibility
escape the relentless vigilance of the Commons.
The privilege of taxation is, thus far, wholly undis-
puted, nor will it be necessary for the committee to
dwell on the precedents by which it is established,
except for the purpose of illustrating the constitu-
tional theory which is supposed to be compromised
by the recent vote of the House of Lords.. On one
side it is argued that the acknowledged right would
be worthless without a farther extension to the
case in which existing taxes have been deemed by
the House of Commons no longer necessary for the
public service. The majority of the Lords main-
tain that a power founded on custom is limited by
positive precedent; and they refer to the ancient
practice of embodying grants of money in statutes
as a proof that the house, which can neither origi-
nate nor alter the mode of supply, must have the
power of refusing it. It is necessary, however, to
carry the argument further, by applying it to the
repeal of taxes as well as to bills by which they are
imposed. In this instance also the power of assent
gives a legal right of rdfusal ; and, notwithstanding
the plausible analogies which may seem to bear en
the question, the Committee will probably infer
that the case has not been provided for in constitu-
tional legislation. The precedents in favour of the
recent vote are too obscure to serve as the basis of a
new system, and, on the other hand, it will be im-
possible to point to the rejection or defeat of any
similar claim. It is a curious circumstance that, in
their jealousy of financial interference, the Commons
have habitually refused or evaded the request of the
Lords for communication of papers and returns re-
latthg to the revenue and taxation. It was pro-
bably with reference to this practice that Lord
Granville reminded the House that it could possess
no official knowledge
of the estimates which neces-
sarily furnished the Opposition with materials for
argument. It is true, that the Lords may obtain
the greater part of the same information by order-
ing returns for themselves, and the remainder by
reading the newspapers, but the Commons have not
thought fit to assume that financial tables can be of
any use to a body which cannot alter a Money Bill,
and which has generally not thought fit to reject
one. The alleged innovation, which they are low
invited to resent, seems never to have been fore-
seen, and consequently it has never been guarded
against by any resolution or rule of proceeding
The inability of the Lords to amend Money
is so fully settled that the Committee will only
be
called upon to examine the earlier precedents for
the purpose of discovering arguments, admissions,
and vbiter dicta, which may indirectly illustrate
the power of rejection. In the Conference on the
tiyposed amendment of the Poll Bill in 1689, the
pxiliiiinetry resolutions of the Commons declare that

all money aids and taxes are their sole gift ; that
the Lords are not to alter any such grant, gift,
limitation, appointment, or modification, or other-
wise to interposein such bills than to pass and reject
the same for the whole, without any alteration or
amendment, though in care of the subject. They
afterwards proceeded to illustrate the power of re-
jection by comparing it to the Royal veto, which
had not then become wholly obsolete. The Com-
mittee will 'probably attach but secondary impor-
tance to a precedent drawn from a time at which
the refusal of the King's assent to a bill was consti-
tutional, as it still continues to be legally possible.
There can be no doubt that in 1689 the concurrence
of the Lords in a grant of money to the Crown was
regarded as something more than an empty form.
The Commons had good reason for believing that
the grants which necessarily originated with them-
selves would never be wholly refused by the Lords.
The political and economical bearings of different
systems of taxation had:not yet given rise to serious
controversy, nor was it probable that when the re-
presentatives of the people had provided a certain
revenue, the whole amount should be placed in jeo-
pardy by the House of Lords on secondary and in-
cidental grounds. The attempt to deal with the rate
of taxation had been defeated by the perseverance
of the Commons in refusing to accept any amend-
ment to money bills. In 1671 the Lords reduced a
duty on sugar, and consequently the further pro-
gress of the bill was interrupted. After the Revo.
lution the pretension seems to have been renewed,
and a long interval elapsed before the repeal of
taxes gave rise to any question of practical im-
portance. The appropriation of supplies, which is
the undisputed privilege of the House of Commons,
furnished an additional security against any inter-
ference on the part of the Lords with matters of
revenue. The practice was first introduced in the
time of James 1., and was adopted by the Long
Parliament, and it was followed in many instances
after the Restoration. The statute 9 and 10 Wil-
liam 111., c. 44, for the first time appropriated all
the supplies of the session, and the precedent has
since been regularly observed. It was on this ground
that some of the speakers in the recent debate
argued that the produce of the paper duty would be
useless, unless the House of Commons thought fit
to apply it expressly to the public service.
The committee will not fail to attach due weight
to the interference which was exercised by the Lords
in 1789 and 1790 in favour of cocoa-nuts. Whatever
may have been their motive for exempting that un-
pretending fruit from duty, it seems that the Com-
mons acquiesced in the rejection of a money bill,
which can have affected but imperceptibly the ba-
lance of revenue and expenditure. It is necessary
to observe that in cases of this kind there is no spe-
cial facility for raising the question of privilege.
Under the Plantagenets the Commons had the
means of asserting their right of originating grants,
by refusing to concur in any proposal of the kind
which might proceed from the Upper House.
Their control over amended Money Bills in the 17th
century was equally absolute, through their un-
questioned power of rejecting the amendments, but
a measure which is thrown out in the House of
Lords never survives to return to the place of its
birth. When no political or financial importance
was attached to the failure of a bill, the Commons
might naturally be unwilling to raise a doubtful
question of constitutional privilege. Their absti-
nence may fairly be drawn into a precedent, but the
precedent itself ought not to be extended too far.
In the matter of the cocoanuts the Lords certainly
never intended to express a want of confidence in
Mr. Pitt, or to set at defiance the majority which
he commanded in the Commons. Their interference,
as far it went, was in relief of the subject, and gene-
rally it may be said that great constitutional doc-
trines are not to be founded on over-sights. The
Malt Duty Bill of 1807 was thrown out on the ex-
press ground that it was encumbered with a "tack,"
or irrelevant clause. At a much earlier period the
Commons had attempted to encroach on the consti-
tutional rights of the Lords by including in the
same bill grants of revenue and matters of general
legislation. The usurpation was defeated by the
standing order of December, 1702, which still regu-
lates the practice of the house. It was ordered and
declared " that the annexing any clause or clauses
to a bill of aid or supply, the matter of which
is foreign to and different from the matter of the
said bill of aid or supply, is unparliamentary,
and tends to the destruction of the consti-
tution of this Government." If the smallest
irrelevant provision is included in the most
indispensable Money Bill, the Lords amend it
by striking out the objectionable matter; the
Commons consequently refuse to accept the amended
Bill, and the whole process of taxation must be re-
commenced or altandoned. The Malt-tax Bill of
1807, relieved of its objectionable appendages, was
revived, and passed through both Houses of Parlia-
ment without further impediment. The House of
Lprds has so seldom desired to embarrass the Govern -
ment, that the rarity of the occasions on which it
has refused its assent to taxes by no means implies
a deliberate renunciation of the legal rights which
are said to be inconsistent with the modern Consti-
tion. Even when the Ministers of the day have
been in a minority, the leaders of the House have
necessarily been aware that the refusal of a tax in-
volved the responsibility of replacing it, while the
power of supplying the deficiency rested exclusively
with the Commons. In debate the right of rejecting
Money Bills has often been expressly reserved, but
rather with the rhetorical purpose of recommend-
ing that it should not be exercised than as a formal
protest against any claim which might be attempted
by the other house. After examining the journals
and refreshing their memory as to the language
used by constitutional authorities, the committee
will probably come to the conclusion that the pre-
cedents throw but little light on the power of the
Lords to refuse their concurrence in grants to the
Crown. The far more formidable privilege of re-
jecting bills for the repeal of taxes derives counte-
nance from several precedents which are not to be
wholly set aside, although they for the most part
admit of explanation and distinction.
In 1758 the Lords refused their assent to the sus-
pension of certain Customs' duties on Irish tallow ;
in 1811 they threw out a bill for reducing the duty
on molasses, and although they adopted the succes-
sive remissions of the corn laws down to 1846, it
was undoubtedly admitted by all parties that if
they had rejected the measures proposed by the Go-
vernment, they would have been guilty rather of
a political error than of an interference with the
privileges of the Commons. The other precedents
which have been cited are of secondary importance,
and some of them are inapplicable, inasmuch as the
bills which were rejected were incumbered with
tasks. The bill for regulating the coasting trade
involved administrative•provisions as well as relief
from duties. The abolition of fees to Custom-house
officers scarcely related to general taxation. The
defeat of the bill for altering the Excise on stone
bottles took place immediately before the proroga-
tion, and the measure may probably have been in-
tentionally withdrawn by the Minister who pro-
posed it. In the more serious cases which related
to corn and to sugar—although the reduction of a
tax formed the subject-matter of the bill—the object
of both houses was to relax or to maintain protec-
tion irrespective of any loss or profit which migh

accrue to the revenue. It is scarcely necessary to
prove that similar considerations were involved in
any legislation which referred to Irish tallow a
hundred years ago. If in any of these cases the
Commons had been conscious of an infringement
on their privileges, they could only have provided
a remedy at the cost of bringing into question
the exclusive control over financial arrange-
ments which had never been practically disputed.
More or less free competition with West Indian

sugar, with Irish tallow, or with corn from the
Black Sea was undoubtedly a proper subject for
the deliberations of the entire Legislature, al-
though it could only be prevented or regulated by
an appropriate adjustment of taxes. An exclusive
privilege of regulating weights and measures would
scarcely be thought applicable to the process of
handicapping horses for a race. The Commons
must take the consequences of their passive acqui-
escence in the rejection by the Lords of measures
which were technically Money Bills. On the other
hand, they may naturally rely on the abstinence of
the ilouse of Lords from all interference on purely/