XVI.

A nature which gave so much to its friends was unlikely to be lacking in the more sacred sphere of family affection. The relationship between himself and his mother, Lady Horner, was in all its aspects beautiful. But of this I say no more.

The last letter he wrote from France before his death was dated the 17th November 1917, just after his return from leave in England. It is a short and scribbled note, but I print it here because it was characteristic, and because it contains the last words that he is known to have written :

Things are looking much better to-day. We are likely to move almost at once, and shall have something to do.

I suppose it was reaction after leave, but on arrival here I felt cross, and they would all draw attention to it asking why, and so forth, which always makes one worse. To-day things changed and every one seems attractive again, and we had a lovely dinner with singing and laughter, and I feel the connection between my love for my companions, and my love of you. Bless you all.-E.

With him perished the last hope of direct male succession in an ancient and honourable English house. And there passed too a gay, sunny, and adorable nature, the love of which made life sweeter and will keep it permanently sweeter for many.

XVII

JUDGES AND POLITICS

DURING the month of March of this year questions XVII. arose, and were debated at some length in the House of Lords, which turn upon the constitutional position of the Judicial Bench and in particular of those Judges who sit in that House virtute officii. The controversy sprang almost as a side issue from the debates upon the Irish Free State Agreement Bill, and, as often happens, its permanent importance was somewhat obscured by the personal interests involved. The doctrines which were enunciated were of great gravity, and some of them, especially those which were laid down by Lord Salisbury on the 29th March, were somewhat astonishing. If it had appeared that those doctrines were held only by laymen I should not consider it necessary to recur to the subject. I had supposed, until I listened to the debate, that the constitutional position was clear, and that no one desired to see some modern Ellenborough sitting in the Cabinet as Lord Chief Justice, or some modern Sir Hugh Cairns hastening from the Strand, after sitting in the Court of Appeal until 4 o'clock, to lead the opposition in the House of Lords. Such

XVII. apparently is the desire of Lord Salisbury. His speech would have made his sagacious and experienced father shudder. But though we welcome and tremble before Lord Salisbury's fiery irruptions in debate, I should not have thought myself compelled, by the depth of his constitutional learning, to think that his intervention in the matter required any further restatement of the modern constitutional practice. It is rather because my noble friend and immediate predecessor upon the Woolsack - Viscount Finlay - committed himself to views upon this subject, which seem to me unsound in their conception, and disastrous if carried into execution, that I think it well to deal with it at greater length than is possible in the House itself.

The matter arose in part from the intervention of several of the Lords of Appeal in Ordinary in the Irish debates, and in part from a political speech delivered by one of those Lords of Appeal in the country. Much was said by that noble Lord, whose conduct I ventured to criticise, about his personal honour. No question of personal honour and indeed no personal question of any kind enters into the matter. The subjects for consideration are: what is the course of conduct which modern theory and practice impose upon Judges in relation to politics, and in particular upon those Judges who are members of the Upper House; what is best in the interests of the administration of justice, and of the respect and authority which ought to be possessed by our Courts of Law, and in particular by the two Supreme Appellate Tribunals of the Empire

the House of Lords and the Judicial Committee XVII. of the Privy Council. If there is any rule or convention which in effect forbids the Lords of Appeal in Ordinary from taking an active part in political controversy either within or without the House of Lords-should that rule or convention apply also to the Lord Chancellor and to the ex-Lord Chancellors; or, in the alternative, if there is no such rule or convention binding these judicial personages, should such a rule bind the Judges of the Supreme Court. Should they be released from the prohibition which at present prevents them by Statute from sitting in the House of Commons. Again-it being conceded that Recorders of provincial towns and those magistrates who are not appointed under the Acts relating to Police Magistrates and Stipendiary Magistrates take an active part in politics and sit in the House of Commons-should not this liberty be extended upwards as it were, so that, from the Lord Chancellor to the member of any County or Borough Bench, all those, whether lawyers or laymen, who take part in the administration of justice should be free to place their services at the disposal of the State in political matters, and be able from their places in Parliament to give to Parliament the inestimable advantage of their judicial experience.

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Now on all these points Lord Finlay is clear. He thinks with regard to the Judicial Benchthe common law Bench and the Judges of equity that there is a long and unbroken tradition that they should not take part in political life." He thinks that there is some case for

XVII. applying a similar prohibition to such Judges as Recorders. But with regard to the Lords of Appeal in Ordinary, he thinks that there is "no such convention and no such rule." Furthermore, he thinks that there ought not to be such a convention. And he deals with the arguments which I addressed to the House of Lords in the matter as follows:

"The Lord Chancellor takes the case of the ordinary Judges. He says that there is a wellestablished rule with regard to them. They are Judges, and Lords of Appeal here are also Judges. Therefore, if the common law Judges are excluded from politics it follows that the Lords of Appeal here, being Judges, are also to be excluded. That is not the way in which the law of England has been built up."1

I fully agree that the law of England, especially in such matters, has not been built up by clearcut deductions such as these. It has been built up piece by piece, and to some extent haphazard, to meet particular emergencies as they arose. Very often that which is alleged to be the foundation of some constitutional doctrine has been invented to account for the existence of the doctrine itself. Very often from some constitutional principle there have followed consequences which were never intended by its framers. Our love for precedent, our desire to seek in precedent rather than in principle for the reasons of things as we find them, or as we think they ought to be, have often produced curious results. The history of the separation between the judiciary

1 Hansard, vol. xlix. p. 953.