§ LORD LYNDHURST
said: My Lords; the subject which I am about to bring under the notice of your Lordships is one of very considerable importance, because it relates to the composition of your Lordships' 264 House; and the question is whether the ancient hereditary character of tins House is to continue, or whether it is to be broken in upon and be remodelled to the extent and according to the discretion and interest of the Minister for the time being. My Lords, I have been requested by some of my friends to bring this subject fully before your Lordships. In the performance of that duty I will endeavour to state the case plainly and simply, so as to render it perfectly intelligible to your Lordships; and I will further, in the performance of that duty, endeavour to encroach as little as possible upon your patience and attention.
My Lords, it must not be supposed for a moment that there is any personal objection to my learned Friend, the late Baron Parke, in the Motion I am now about to submit. The objection is, not that he is about to be raised to a place in this House, but that he is to be raised in a different form, and shorn of the usual consequences of a patent of peerage. It is now upwards of thirty years since I first was intrusted with the custody of the Great Seal, and one of the earliest acts of nay official life was to recommend this learned gentleman to the Sovereign for a seat upon the judicial bench. The manner in which he has discharged the duties of that high office, his assiduity, his industry, his learning and impartiality, do more than justify the appointment—they do honour to the selection. My Lords, there are circumstances incidental to the position of the learned Gentleman which make the consideration of this question of greatly more importance. He is advanced in life; he is a married man; he has no son; nor—but I make the remark with hesitation—is there any likelihood of a son. It is quite clear, therefore, that, whether he have a peerage for life, or a peerage in the usual form, practically, as far as that peerage is concerned, it would probably have been the same thing. The obvious consequence, therefore, is—and I believe no person will pretend to deny it—that this patent is intended as a precedent for future occasions, and to enable the Minister for the time being to place in this House as many tenants for life of the peerage as may suit his interest at any future periods in the history of this country. But, my Lords, I must beg to protect myself against any misapprehension of what I am about to say. I have received too many marks of the favour of my Sovereign 265 —I feel too grateful for those instances of Her favour—to render it possible I should entertain any disrespect whatever towards Her. It must, therefore, be considered that in everything which falls from me upon this occasion I am not speaking of the Sovereign personally, but of the advisers of the Crown. When, therefore, I talk of the prerogative of the Crown and of the manner in which that prerogative has been exercised, I must be understood as referring not to the manner in which it is exercised by the Sovereign personally, but of the manner in which it is exercised by Her advisers, according to the usual constitutional course of proceeding in cases of this description.
My Lords, it is said—and I hear it repeated over and over again—that this is part of the prerogative of the Crown, and that the Crown may legally appoint a Peer for life. Assuming that to be the case (though I shall advert to the subject more particularly by and by), it does not follow that every exercise of such a prerogative is consistent with the principles of the constitution. The Sovereign may by his prerogative, if he thinks proper, create a hundred Peers, with descendible qualities, in the course of a day. That would be consistent with the prerogative, and would be strictly legal; but everybody must feel and everybody must know that such an exercise of the undoubted prerogative of the Crown would be a flagrant violation of the principles of the constitution. In the same manner the Sovereign might place the Great Seal—instead of giving it to a person, like my noble and learned Friend, distinguished for his legal and other attainments—in the hands of a person, a layman, wholly unacquainted with the laws of the country. That, also, would be a flagrant violation of the constitution of this country. Other cases might, at the same time, be adduced, but the examples I have already cited are sufficient to establish the principle which I maintain. Now, my Lords, the position which I mean to lay down, and which I can maintain, is, that no instance has occurred in the history of this country within the last 400 years in which any commoner has been raised to a seat in this House by a patent of peerage containing only an estate for life. Every person who has studied the constitution of this country, and who is at all conversant with the principles upon which it is founded, must be aware that one of these principles is long-continued usage—Lex et consuetudo Parliamenti—that is one of the main principles on which our constitution rests. 266 Going back a period of 400 years, in order to select three, or four, or half-a-dozen instances in which the Crown has performed a particular act by virtue of its prerogative, before the constitution was formed, before it was brought into a regular shape, and to make those precedents the foundation for a change in the composition of either House of Parliament, is, I contend, a gross violation of the principles of the constitution. My Lords, let me look back to the times to which I refer. What extraordinary powers were then claimed and exercised by the Crown, and were considered a part of its undoubted prerogative! The Sovereign would issue his writ to certain boroughs, desiring them to return Members to Parliament; he would then issue his writ a second time, continuing certain of those boroughs and discontinuing others, thus altering at his discretion the whole constituent body of the country. There are cases, also, of this description:—To Peers entitled beyond all dispute to a seat in this House, and to a deliberative voice among us, a writ of summons was sometimes sent, sometimes discontinued, so that the House was remodelled according to the discretion and will of the monarch for the time being. There are cases where Peers have been summoned for a single Parliament, summoned for a single Session, then discontinued, and then summoned again. There are cases of peerage during pleasure, and there are cases even where a Peer has been created with all the rights of the peerage with the single exception—and it is certainly a remarkable exception—of the right of sitting in Parliament. My Lords, in the time to which I refer the Crown exercised a power of dispensing with the laws of the country. It exercised the right of establishing martial law at its will and pleasure throughout England. It exercised the right of issuing Commissions for the purpose of levying money in the shape of loans. It exercised, further, at the period to which I am alluding, other rights of a most extraordinary nature. Many of these have been abolished by Act of Parliament; others have fallen into desuetude; and where any of these privileges have not been exercised for a long period of time—have never been exercised since the constitution took its present form—it appears to me that to make use of these precedents for the purpose of altering the composition of the Houses of Parliament is a gross violation of the principles of the constitution.
Now, my Lords, it is my duty to point 267 out in detail and to call your Lordships' attention to the cases which are cited in support of the exercise of the prerogative of the Crown which we are now considering. I will not, in so doing, occupy any considerable portion of your Lordships' time, but it is essentially necessary that your attention should be directed to those cases, in order that you may arrive at a right conclusion upon the important subject now under your consideration. My Lords, the first patent for the creation of a peerage for life was issued in the reign of Richard II. In the first year of that reign the first of the cases which are relied upon in justification of the present exercise of the prerogative occurred. A peerage for life was granted to a foreigner named Guichard d'Angle; but that individual was, as a foreigner, precluded from sitting and voting in Parliament, and so, the grant being nugatory, the patent of creation was cancelled in the following year, and a pension of £1,000 a year was settled upon him as an equivalent for the loss of his dignity. It is quite clear that that individual never sat in Parliament, and that, as a foreigner, he had no right to do so, and therefore his case can have no bearing upon the question we are now discussing. My Lords, Richard de Vere, Earl of Oxford, who, as your Lordships will recollect, was the favourite of Richard II., was created Marquess of Dublin for the term of his natural life; but that case has not the slightest bearing upon the present question, nor does it in any way justify that exercise of the prerogative of the Crown to which I am calling your Lordships' attention, because at the time when the Marquessate of Dublin was conferred upon Richard de Vere, he was entitled, as Earl of Oxford, to sit and vote in your Lordships' House; and therefore did not in any way acquire that right in consequence of the additional title conferred upon him. There is a third case in the same reign similar in point of principle, and to which the same answer applies. A grant of a dukedom for life was made to the King's uncle, who was created Duke of Aquitaine; but he was entitled to a seat in your Lordships' House by virtue of his previous title of Duke of Lancaster; and therefore this grant did not alter the composition of this House. There was, also, the case of the Duchess of Norfolk, who was made a Peeress for life; but that can have no application to the present case. I have now, my Lords, gone through the reign of Richard II., a reign which has been selected as the period 268 from which the best precedents may be found for granting peerages in the form now in contemplation; and none of the cases which I have cited appear to me to apply to the case we are now considering. But, my Lords, even suppose that this were otherwise—suppose that the opinion which some persons entertain upon this question be the correct one—how can you, I ask, by any possibility refer to the most turbulent period in our annals for the purpose of establishing a principle of this nature? Why, my Lords, the Barons and the King were at perpetual war. At one time, the Barons having obtained the upper hand, the King was compelled to execute a commission transferring all the authority of the Crown to certain persons named in that instrument. The Judges consulted by the Crown as to the validity of that instrument, gave it as their opinion that it was illegal and invalid, and we see them seized by the Barons, the Chief Justice executed without any form of trial, and the other Judges banished. Again, we see, upon a triumph obtained by the King over the Barons, the Duke of Gloucester thrown into prison, and various Barons seized and murdered. The Barons, again getting the upper hand, seize the King and, throwing him into prison at Pontefract, put him to death. Such, my Lords, is the outline of that reign, and can any just deduction be made from a turbulent period of that description as to the proper exercise of the prerogative of the Crown in times like our own? In the, following reign, that of Henry IV., no instance is cited in support of this exercise of the prerogative. Henry V., in the first flush of his popularity, in the first year of his reign, created one brother Duke of Bedford, and another Duke of Gloucester, both for life, and another relative, a cousin, he created Earl of Cambridge for life; but the last grant failed by death in the following year, and he never took his seat in your Lordships' House. With regard to the grants of the Dukedoms of Bedford I and Gloucester for life, those grants were afterwards surrendered, and those peerages were granted in the usual descendible form; and I believe that these are the only two cases which occurred in the reign of Henry V. which can be cited in support of the present exercise of the prerogative. There were cases in which Peers, already enjoying a seat in this House, received additional titles, as in the case of the Earl of Warwick, who was created Earl of Albemarle for life; but, according to the 269 principle which I have already enunciated, the addition of these new titles conferred no new right to sit or vote in your Lordships' House, and therefore the new creations did not alter the composition of this House. I am sorry, my Lords, to have to enter into those details, which must, to a certain extent, be dry and uninteresting; but it is absolutely necessary to do so in order to arrive at a correct opinion with regard to the important question before us. The only additional cases which can by possibility be relied upon to support the present exercise of the prerogative are those of the Earl of Berners, in the reign of Henry VI., also a period of the utmost turbulence and confusion, when a violent contest was perpetually being carried on between the Duke of Gloucester and the Bishop of Winchester; and of Sir John Cornwall, who married an aunt of the Queen, and who, it is alleged, was created a Baron for life. I think, my Lords, that there is no sufficient proof that that peerage was for life only. The only memorandum which can be found relating to that peerage is contained in the Rolls of Parliament, and from them I find that the King, in the presence of the collected Peers, and by their assent, created that individual a Baron, with all the rights, privileges, and incidents to that rank belonging, to be enjoyed by him as freely and as fully as by any of the other Barons. If I were asked, my Lords, upon this evidence to judge whether in my opinion the barony thus created was a barony created for life only, I confess that I should arrive at a different conclusion. When it is stated that that person was created a Baron with the assent of the assembled Peers, and that he was to take his seat among them with the same rights and privileges as the other Barons, one would suppose that among those rights and privileges there would be the privilege enjoyed by the other Barons of transmitting his title to posterity. All these cases are included in the period to which I have referred; and there is, I think, no case to be found at any early or subsequent period which at all corresponds to the case we are now considering.
Now, my Lords, in considering these four or five cases, we must make every allowance, because we must remember that they occurred at a time when the constitution of the country was neither understood, nor was it formed. We must remember that there was no similar grant 270 before that period; that there has been none since until the reign of Charles I., when the constitution began to assume a new form; that there has been none since the Revolution, when the constitution was ultimately formed; and, remembering this, will you say that these few cases are sufficient to justify the Crown in issuing a patent of a life peerage for the purpose of remodelling your Lordships' House? My Lords, allow me to say that this creation of a life peerage is a most flagrant violation, if I may use so strong an expression, of the great principles upon which our constitution is founded. I dislike, my Lords, passing over anything which may be adverted to by those who entertain opinions contrary to my own, for if I pass over any case it may be said that I am afraid to deal with it; and therefore, I will just mention a case which occurred in the reign of Henry VIII., although I do not think that it has any bearing upon the question now before us. In that reign there were in Ireland various principalities from which titles were derived, and a Prince of Thomond was created Earl of Thomond. It was a great object with the Crown at that time to get rid, if possible, of these principalities which were held for life, and King Henry VIII. granted to the Prince of Thomond the Earldom of Thomond, which was only a nominal title, because by the same patent he was created Baron Inchiquin, with the title to himself and his heirs for ever. I thought it my duty to advert to this particular case, for fear it should be said that I had omitted it from an idea that it operated against the views which I have undertaken to present to your Lordships. There is also, my Lords, another class of cases to which I am bound also to allude—a class of cases which has been considered very important. These cases I also consider to be on my side, and that they have no application to the present case. The cases to which I allude are those in which ladies have been admitted to the peerage. There are several instances of that description, but they are not all of them of the most moral description. I will refer to one or two of them. Louis XIV. was very desirous at a certain period of his reign to establish an entente cordiale with our monarch Charles II. He knew the weak side of that monarch, and accordingly selected a very beautiful lady to come over to this country to act as a mediatrix between the two Sovereigns. The mediation 271 was successful; the result was, I believe, after a considerable time, some children as the fruits of that mediation, and the lady was created Duchess of Portsmouth for life. That case, however, can scarcely be mentioned as part of the creation and constitution of your Lordships' House. James II., who was not much distinguished for morality, although he gave up his crown for his religion, created Catherine Sedley a baroness for life. William III. led a much more regular life, and nothing of tins kind can be charged against him. After him came the House of Hanover. George I. created Madame de Schulemberg Duchess of Kendal for life, and an irregular daughter of that lady was also made a Peeress for life, by a title which I cannot at present remember. So we went on till the reign of George II., when we find the Countess of Yarmouth made a Peeress for life. These are not very moral passages in our history; but it was my duty to refer to them because they might be referred to on the other side; but I conceive that they have no bearing upon the present case. There is one case, however, which I must mention because it affords a strong argument in favour of the view which I am maintaining. The Countess of Rivers was created a Peeress for life. She was arrested for debt, and she applied to the Court of King's Bench to discharge her upon the ground of privilege. The question was very ably argued in the Court of King's Bench; but the Chief Justice and the other learned Judges said, "This peerage is in no way connected with Parliament, or with any public service rendered; it is quite obvious, therefore, that it must be left out of our consideration, and that it affords no warrant whatever for the privilege contended for." My Lords, there is another class of cases where a peerage for life is granted with remainder to the second or third son, or some other person; but this is a mere form of conveyance. It is necessary in such cases to create an estate for life in order to sustain the remainder. In most of the cases to which I have referred the grant of the estate for life was to regular Members of this House, holding peerages already. But some cases do not go to that extent, and they really have no bearing upon the present case; because the instrument creating the peerage is made to carry not only an estate for life, but also an estate in fee-tail. This does not in any way impeach the proposition which I have laid 272 down, and which I have undertaken to establish—that, from the time of Henry VI. down to the present day, a period of 400 years, no commoner has ever been placed in this House as a Member of this House by virtue of a patent creating him a Peer by a mere estate for life. I need therefore scarcely repeat that which no lawyer or friend to the constitution can for a moment doubt—that an instrument of that kind, coming before the formation of our constitution, when the prerogative itself was in a state of doubt, and never acted upon from that time to the present, cannot, in any view of our constitution, be made use of to justify a patent breaking in upon the long-established character of your Lordships' House.
My Lords, I shall now refer to an opinion upon this portion of the subject which, I am sure, from all that I have heard, is likely to be pressed upon your attention—I mean the opinion of Lord Coke. He has laid it down that the Crown may, by its prerogative, create a peerage for life. I have before stated, however, that the question is not what the Crown may do by its prerogative. When I was speaking upon this subject the other day in conversation with a noble and learned Friend of mine, he said, "Why, the Crown, by its prerogative, may send for a troop of Guards and make every one of them a Peer, with the title descendible to his heirs." But that would be a gross violation of the law of the constitution of this country, although every act of that description would be within the prerogative, and would be strictly legal and in accordance with the technical rights of the prerogative. But, my Lords, I would warn you not to place more reliance upon the opinion of Lord Coke than it is justly entitled to. I know that in the reign of James I. a public charge was made against him that he laid down a great deal of law on his own authority, without sufficient vouchers for the views which he took; and I know that in matters relating to the peerage he was considered as by no means infallible. It is remarkable, too, that in the very book in which Lord Coke lays down the law in the manner that I have stated, his commentator, Mr. Hargrave—a gentleman of great and profound learning, than whom no man that ever lived was more conversant with the law of this country—in his commentary upon the text states that he does not think that that opinion can be sustained; he does not consider that the opinion is, in point of law, established 273 by any sufficient authority; and he strongly excepts to the text of the learned author, and concludes by referring to a case to which I am about to direct the attention of your Lordships. It is a long case; but I will place it before your Lordships in a very simple form, so that it will be easily understood—it is the case of Viscount Purbeck. The question was, whether a Peer could surrender to the Crown his title. The case occurred in the time of Charles II., and it was argued at great length and with great ability by Sir William Jones, the then Attorney General. In the course of his argument he stated, by way of drawing a deduction from it, that the King by his prerogative could create a Peer for life; and he illustrated the main question by arguments built upon that assumption. The learned Judges who decided that case in this House were men of very great eminence—the Earl of Shaftesbury, who had just given in the Great Seal, and the Earl of Nottingham, by whom he was succeeded. The Earl of Shaftesbury might, from his previous career, have been in some degree deficient in legal acquirements; but as an expositor of the great principles of the constitution never any man stood higher. Need I remind your Lordships of those forcible lines, descriptive of his high judicial character, which occur in the works of our great master poet Dryden? When that learned Judge came to pronounce judgment on the case before him, he referred to the assumption which had been made by the Attorney General as to the King's right to create a peerage for life; and he said, "Sir, you have assumed that which you had no right to assume. The assumption of that question is more difficult and obscure even than the main question which it was intended to illustrate." It was, in fact, arguing upon the rule of ignotum per ignotius; and it is quite clear, from the concluding remarks of that eminent and great man, that he considered, even at that day, that the right of the Crown to create a peerage for life was not only doubtful, but that it could not, in point of law, be sustained. No man ever sat on the woolsack of greater eminence than Lord Nottingham, the then Chancellor. He, in his judgment, supported the argument of Sir William Jones, and came to the conclusion that the surrender was lawful. He adopted most of the arguments of the learned Attorney General, but he passed over that one to which I have 274 referred, thereby showing in the most marked manner that he agreed in opinion with the learned Lord who had preceded him. Having made these observations upon the opinion of Lord Coke, allow me to proceed one step further. In a case before this House—the Waterford Peerage case—which was heard when Lord Plunket was present and took part in the judgment, the opinion of Lord Coke was cited. That was a clear, distinct, and decided opinion. It was overruled by the House, and Lord Plunket, in giving his judgment, said,—If Lord Coke had stated no reasons in support of his decision I should out of deference to him, have doubted the correctness of my own opinion; but as he has stated reasons, and those reasons have no validity, I feel compelled to decide against him.Again, the Devon case on one side rested entirely upon the distinct and clear opinion of Lord Coke. It was argued in this House most learnedly and most elaborately; and the House, after much consideration and care, came to a conclusion contrary to that of Lord Coke, which was declared not to be founded in law. I state this case, not to lesson the reputation of that learned person, but to show that we must not be put down by the ipse dixit, unfortified by any authority, of even so distinguished a lawyer as my Lord Coke. But, as I have before said, it is unnecessary elaborately to enter into this part of the case. What we are dealing with is not a question of technical law, or of legal right; it is this—whether upon certain precedents established 400 years ago the Crown can at this period, after the settlement of the constitution, and after the frame of the two Houses of Parliament has existed for a period of 200 or 300 years, create life peerages, and whether your Lordships will for a moment think that the exercise of the prerogative in the present instance can be considered as justifiable upon any principle of constitutional law or practice?
I have now passed over what I deemed the dry part of the subject. I was compelled to go through it. I was asked by my friends to unfold the case to your Lordships. I wished to do it fully, and to touch upon all the points of the case; but if I have omitted anything, I shall be followed by several noble and learned Lords who will supply my deficiencies. I, therefore, leave this part of the case with these observations. What will be the consequences of the establishment of a system of life peerages? You will from time to 275 time have appointments of this kind repeated; you will become accustomed to them, and you will find this House divided into two classes, part hereditary Peers and part mere Peers for life. One great barrier against the creation of Peers for the occasional purposes of the Government is the hereditary character of this House. To attempt any such creations at present would be attended with great risk and difficulty. No man would willingly encounter that risk. In the reign of Queen Anne, Sunderland and Oxford made the attempt, but we know it has been matter of denunciation ever since. But if a few members of the legal profession can be created Peers for the short remainder of their career, how easy it will be for an unscrupulous Minister—we have had many unscrupulous Ministers, and we are likely to have them in future—to carry the system out to what extent he thinks proper for his own objects. I may be told that this privilege or prerogative may be sparingly exercised, and that we must not object to a good thing because it may be abused. I do not give way to that delusion. I do not accede to that position in what I call constitutional policy. I will give no power that is capable of being abused, unless where I think it necessary for some great object. That is the constitutional doctrine which I have always taught, and to which I am determined to adhere. But are there no great authorities on this subject? I am able to lay before your Lordships an authority of the highest character. A noble Earl, formerly leader of the Government in this House, of great constitutional principle, deeply versed in the constitution of the country, who, deeming this House one of the great bulwarks of that constitution, and supporting its privileges—a noble Earl for whose memory I entertain the highest respect—what was his course and conduct with respect to this very question? I see my noble and learned Friend (Lord Brougham) above, and he will set me right if I state anything that is incorrect. We all remember the great excitement caused by the discussions on the Reform Bill, especially by the opposition which that measure met with in this House, and the great difficulty which was experienced in overcoming it. The subject was considered in a variety of forms, and every possible way of defeating the opposition in this House was maturely weighed. It was at one time thought that the object might be accomplished by calling up a number of the eldest sons of Peers from the 276 other House of Parliament; but it was found that the number was far too small for the purpose in view. Another plan was the creation of life peerages. It was considered by Earl Grey, but only to be rejected. Important as was the measure to be carried, and agitated as the country was in its favour, he believed that the creation of life peerages would be a great innovation, attended with dangerous consequences and subversive of the character of this House. It was accordingly rejected, and I believe that not only that great statesman entertained the opinion I have stated, but that William IV. declared that he would never consent to such a measure. But Earl Grey is not the sole authority upon whom I can rely. At the time of the union with Ireland, it became necessary to create a great number of Peers for the purpose of carrying that measure. So numerous were the peerages created on that occasion, that in the Union Act a clause was introduced providing for their gradual reduction. Do you suppose that if that great and eminent statesman, Mr. Pitt, who directed all the proceedings of that important measure, had thought it justifiable to create peerages for life, he would not at once have resorted to that expedient to diminish the inconvenience of a large addition to the peerage? Therefore I have, then, two distinguished statesmen—Earl Grey and Mr. Pitt—as decisive witnesses against the propriety and constitutional character of the measure under discussion. Nobody can say justly that the influence of Ministers and the subserviency of the House are not carried to as great an extent as they ought to be carried; but if you create a new class of Peers, many of whom will be desirous of having their limited peerage extended to their successors, you create a new influence, you create a new species of subserviency, and you augment an evil which is already sufficiently large. When a question was raised with respect to the prerogative of the Crown to translate the members of the episcopal bench from one see to another, it was said that this translation ought no longer to be tolerated, for it rendered them subservient to the Ministry for the time being. You are now creating a new body to be placed in the same situation, subject to the same influence, and exposed to the same charge of subserviency. It has been said that this exercise of the prerogative may be exercised for conferring rewards for great and eminent services. My Lords, I have listened 277 to that way of putting the question with the utmost indignation. Would you placemen who have served their country in the highest positions—men who have bled for their country—men who, by their exertions, have added to the power and character and glory of the nation—would you place these men in a class lower than those who reflect only the lustre of persons who before them have been distinguished for great and eminent services? I do not go the length of the old Roman poet, when he put into the mouth of the Grecian warrior these words—Nam genus et proavos et quæ non fecimus ipsi Vix ea nostra voco.I do not go that length, but I say that while I respect the descendants of men who have done great and glorious deeds for their country, I respect still more those by whom great and glorious deeds have been accomplished. It is said sometimes—indeed, I have myself beard rumours—that these creations are to be confined to the members of the legal profession. What, I would ask your Lordships, has the profession of the law done to merit this indignity? I say with the most perfect confidence—and I can appeal to every man acquainted with the history of this country for the truth of it, that no body of men have been more distinguished or have been more successful in their exertions in supporting the liberties and maintaining the constitution of this country than those who have belonged to the profession of the law. I hear things sometimes whispered about their descendants; but when I look around this House I see my noble and gallant Friend (the Earl of Hardwicke), distinguished for conduct and personal bravery, and known as one of the most able officers in Her Majesty's service, and I find him descended from a noble and learned Lord who presided in this House with equal dignity and splendour. I further see a noble Earl (the Earl of Ellenborough), of great talent and information on all questions to which he directs his attention, and who is frequently heard to address this House with the most commanding and overpowering eloquence; and he is a descendant of a Chief Justice who was honoured with a seat in this House. I see another noble Lord (Lord Redesdale) who holds a distinguished office in your Lordships' House—intelligent, acute, liberal, and independent—and who stands deservedly high in the estimation of your 278 Lordships. He also is the descendant of one who distinguished himself in the profession of the law. Therefore, my Lords, if it is said that those who have been connected with the law and have been raised to the honours of the peerage are not honoured in their descendants, I protest against such an assertion as unjust and unfounded. I remember a noble Earl opposite, who was lately at the head of the Government (the Earl of Aberdeen), once exclaiming in a moment of excitement, and with extreme bitterness, "We are overridden with lawyers in this House." I think that, if we are to be favoured with an additional flight of lawyers in the manner now proposed, the noble Earl will have more reason than ever to reiterate his complaint, and that we shall lose the assistance of the noble Earl by his hastily taking his flight to the north. It is said that we ought in this way to add to the efficiency and strength of this House in so far as regards the discharge of its law business. My Lords, I maintain that this House never had more efficiency, more judicial strength, or more legal knowledge on which to rely, than at this moment. There is my noble and learned Friend on the woolsack, who was first an equity barrister, was then raised to the common law bench, and sat as a Judge with universal praise from the profession and the public, and is now placed on the woolsack—an individual remarkable for sound and sterling sense and extensive knowledge of the law. That noble and learned Lord presides at the hearing of appeals. Then there is my noble and learned Friend (Lord Brougham), who sat for four years in the Court of Chancery, and performed what must be considered an extraordinary effort—by perseverance and indefatigable labour he swept away the whole arrears of business in that Court, by which the country had been so long disgraced. My noble and learned Friend is deeply conversant with the law of Scotland—a knowledge so essential to the investigation of cases in this House—and who, since he resigned the Great Seal, a period of twelve years at least, has constantly attended the appeals of your Lordships' House. Another noble and learned Lord near him (Lord St. Leonards) might be said from his infancy to have been versed in the law. He held the office of Lord Chancellor of Ireland, and the office also of Lord Chancellor in your House, and now attends regularly to its legal business. In such circumstances, 279 I ask your Lordships whether a more competent or more efficient tribunal could possibly be found for the purpose of administering justice, or deciding important questions of law that may come before you? It may be said that by increasing the number of Judges in this House you add to the weight and character of the tribunal. I entertain a very different opinion; because, in proportion as you increase the number of Judges, you lessen the responsibility, and I am sure that in this House you have a sufficient number of Judges to carry on adequately and efficiently the administration of justice in whatever form it may arise. On this ground, therefore, there can be no excuse whatever for the present creation. I have, as I before stated, the highest possible respect for the talents of the late Baron of the Exchequer; but what is the kind of law that is administered in your Lordships' House? We have common law, the Scotch law, and equity. These are the three branches which your Lordships are called to consider in the administration of justice. The cases of common law are, however, few in number, and, whenever any difficulty arises on any question of importance, the Judges are summoned to assist your deliberations; and you therefore want no aid in the administration of common law in this House. But who is the individual who is selected to assist you in the administration of equity? He is a common law lawyer, and you do not want such a person. He is acquainted only with that department of the administration of justice in which this House is most efficient. As to the law of Scotland, he has never been conversant with it, and he has had no connection with the administration of justice in the courts of equity. This reason which has been put forward is, therefore, a mere idle pretence to justify an alteration of the constitution of the House. What is the real secret of this change in our system? My Lords, in our intercourse with our friends on the other side of the water, have we become so enamoured of their Senate that we can admire and favourably contrast its efficiency, its vigour, and its independence with that of your Lordships' House?—have we been led to imitate them in regard to the composition of the Upper House? It is but a few weeks since I read an official comment in the Moniteur, coming from the highest source, on the inefficiency, the want of patriotism, energy, 280 and the backwardness to fulfil the high destinies to which they were called, that characterised that illustrious body the senate of France. I have no disposition, myself, to cut down our tribunal to that life interest on which the senate of France is based, as I believe the hereditary character of this House is one from which great and important advantages are derived. If you desire, my Lords, to support the stability and the constitutional powers of this House, I think you cannot he prepared to approve the course which has been pursued in this case. The hereditary principle is entwined in every part of our constitution; we, in this House, enjoy our hereditary rights in common with the Crown; we mutually support and assist each other, and we form a barrier and defence to protect both those branches of the constitution against any by whom they may be assailed. Break in upon that principle,—destroy that outwork,—and he must be a bold man indeed who will venture to say he can foresee all the consequences that will arise. My Lords, this question involves so many considerations,—it requires so much careful investigation,—that it could scarcely be satisfactorily discussed in this House; and I therefore for the purpose of examining every point with minuteness and attention, beg to submit to your Lordships the Motion of which I have given notice:—That the Copy of the Letters Patent purporting to create the Right Honourable Sir James Parke, Knight, a Baron of the United Kingdom for Life, which has been laid upon the Table, be referred to the Committee for Privileges, with Directions to examine and consider the same, and report thereon to the House.
§ EARL GRANVILLE
My Lords, I could hardly refrain from joining in those cheers which greeted the noble and learned Lord at the conclusion of his remarkable speech, remarkable even from the noble and learned Lord:—and I can assure the House that I should not have followed a noble and learned Lord of his high position in this place, of his great and various learning, of his extensive experience, combined, I am still happy to see, with that singular degree of vigour both of body and mind, of which he has given such eminent proofs to-night,—I should not have risen to follow the noble and learned Lord had it not been for the poverty of this side of the House, or at least of this side of the question, in law Lords. It is this circumstance that compels me to make an attempt which 281 I feel may be compared to taking charge of the Channel squadron, or any other act usually quoted indicating great courage, or rather great rashness. I am sure, my Lords, that you must have heard with very great pleasure the graceful compliment which was paid by the noble and learned Lord—whose judgment on such a subject is of the highest value—to the members of his own profession, in times past, and to those who are now sitting in this House as their descendants. I fully agree with the noble and learned Lord in my admiration of that profession, and in my anxiety that we should have the most eminent of their members to assist us in our deliberations. I remember that some quarter of a century ago a foolish and absurd cry was raised in the country for the removal of the Lards Spiritual from this House. I am satisfied that at the present moment no such feeling exists, and I believe it would be considered both in this House and by the country to be a serious blow, if the number of Lords Spiritual were to be diminished even by one. But if we feel the advantage of having those right rev. Prelates among us, I think we must feel even more highly the necessity of the presence in this House of the noble and learned Lords of the legal profession. Not only in the evening are these noble and learned Lords present to explain the existing state of the law, and what, if certain measures were passed, the future state of the law would be; but the manner in which the House has received the speech of the noble and learned Lord to-night is a proof how greatly the eminent members of that profession add to the attraction of the debates of this House. If such is their value in the debates of the evening, how much more necessary it is to have the most distinguished lawyers to assist in the judicial functions of the highest tribunal in the country. I believe that the dignity and utility of this House could not suffer a more severe blow than by the severance of its judicial functions. But in order that our judicial duties may be properly discharged, this House ought to be well provided with Peers who are perfectly acquainted with the common law—that law which the noble and learned Lord seems to have left out from his consideration—with Chancery law, with criminal law, with the Scotch law, and with civil law. I do not mean to say that the members of the legal profession in this House should be equal in number to the Spiritual Lords, for I certainly think 282 thirty law Lords would be rather too much of a good thing; but I am confident we shall all agree in the importance of obtaining the assistance of an adequate number of the most distinguished members of the profession. This necessity is by no means new; it has been felt from time to time, but it has always been found difficult to keep up such a supply of law Lords. I have been assured by a friend of mine, in whose precise accuracy I have the most implicit confidence, that the late Lord Bathurst told him Lord Liverpool's Government came unanimously to the conclusion that it was necessary upon that account to create life Peers, and that it was solely in consequence of a change in Lord Liverpool's opinion alone on the subject that the determination was not carried out. I think I shall afterwards be able to quote a letter which will in some degree corroborate this hearsay evidence. In order to show that this is not the first occasion on which the creation of life Peers has been contemplated, I have permission to state that, in 1851, under the Administration of Lord J. Russell, an offer of a life peerage was made to a most distinguished Judge, who would in every respect have been an ornament to this House. The offer was, however, refused, the learned Judge assigning as his reasons that his time was already fully employed in the discharge of his judicial functions; that he would be unable to devote much attention to appeals to this House; that he had been unable to keep up his knowledge of Scotch law; and that—and this he has told me was the decisive reason—although he thought the exercise of the prerogative quite fitting as he now considers it legal, constitutional, and expedient, he knew the step would be very unpopular among his learned brethren; and that, to use his own words, he had the weakness to shrink from being alone the first man to set the example. I think this is some answer to the noble and learned Lord, who has accused the Government of wantonly offering a life peerage to Baron Parke because he is not likely to have sons. If a life peerage be illegal and inexpedient it is wrong to offer it to anybody; but if it be legal, and constitutional, and expedient, I think it is a great advantage that such an offer should be accepted by a man so eminent for his knowledge of the law, so distinguished by his high character, so entirely unconnected with the Government by any political ties, and to whose merits in all respects the noble and learned Lord has borne such 283 ample testimony. The question, as raised by the noble and learned Lord, is, whether the course adopted by Her Majesty's Government is a proper one or not. At the opening of the Session so much was said about the doubtful legality of the act that I was rather surprised that the noble and learned Lord—who has proved to-night with how much labour and research he has examined the subject—should have entirely shrunk from declaring that the act is illegal. Your Lordships, I think, must have remarked that while the noble and learned Lord was more than usually clear, and doubtless very accurate in his historical statement, he did manage to confuse, in a manner of which he is also a master, the legal, the expedient, and the constitutional questions together, and that he carefully abstained from giving any decided opinion as to the illegality of the measure. The noble and learned Lord, evading the question of legality, talked about the constitutionality of the case. Why, the Government have never contended that if the act were wholly inexpedient it could be a constitutional measure; all they contended for is, that it is legal, and that, being at the same time expedient, it is wholly constitutional—the word "constitutional" cannot, in, my opinion, be defined separately from those two qualifications. The noble and learned Lord brought forward a supposed case of the Crown sending for a regiment of Life Guards, and giving them all life peerages. That would certainly be unconstitutional, although it might perhaps be strictly legal; and the proper course, if such a thing were done, would be to impeach and hang the Minister who advised it. The noble and learned Lord reviewed in a most interesting manner, and I believe with perfect accuracy, the precedents on this question, and I certainly shall not follow him into detail, except to make a very few remarks upon certain precedents which he treated as of no importance. At the same time I do not venture to put any opinion of mine in competition with that of the noble and learned Lord, unless I am supported by great and learned authorities. The noble and learned Lord referred to the case of Guichard d'Angle, who was created Earl of Huntingdon by Richard II. for his whole life; and he contended that the case did not support the granting of a life peerage by the Crown; but the patent, which is in the library of this House, designates the creation as being "totâ suâ 284 vitâ durante;" and Dugdale mentions the number of times he was summoned to the Parliament. The noble and learned Lord says this proves nothing, because he did not take his seat; but, although in the case of a Peer summoned by writ alone it is necessary he should take his seat, I believe a peerage conferred by patent is complete without the seat being actually taken. The noble and learned Lord then referred to the case of the Earl of Oxford, who was created Marquess of Dublin for life; but said that that also made no difference, because he was already in the House as an Earl; but I can show that he took his place in the House above the Earls in virtue of his rank as Marquess. In Selden an account is given of his being directed to take his seat above the indignant Earls, "Comitibus indigne ferentibus;" but he, after being invested by the King, took his appointed seat with a cheerful countenance, "hilari vultu." An objection has been stated by the noble and learned Lord to the precedent of the case of the Earl of Bedford, because, although his first creation as a Peer was for life, he was subsequently made an hereditary Peer. Why, if Baron Parke should five years hence be also made an hereditary Peer, how on earth could that affect the question of his creation as a Peer for life now? The noble and learned Lord admits that, down to the time of Henry VI., there were instances of persons being created Peers for life, and sitting in Parliament in virtue of their patents; but then he reminds us that it is a maxim of law that desuetude does away with a prerogative of this kind. On such a point I, of course, give no opinion of my own, but I certainly could have wished that the noble and learned Lord had quoted some of the great legal text-books in his support of his doctrine. If such unlearned lips as mine may be allowed to cite legal maxims, I would mention this one—"Nullum tempus occurrit regi," as showing that the prerogative of the Crown does not suffer from lapse of time. The principle asserted by the noble and learned Lord is one of very great importance, and certainly if sound it might be carried to very extraordinary lengths. Take, for instance, the undoubted right of the Crown to veto an Act of Parliament. That right, however, has not been exercised for 150 years. Does that circumstance constitute it illegal; or is it necessary that the Sovereign should now be advised to take an early opportunity of 285 vetoing some Bill for the sake of saving Her prerogative? I utterly deny the noble and learned Lord's assertion that there are no precedents to justify the Crown in creating peerages for life. If the noble and learned Lord had shown that for 700 years the Crown had neither created nor summoned to Parliament Peers for life, then I admit we must have shown some strong necessity—must have adduced some cogent arguments—to justify the resuscitation of such a prerogative. But when the Crown has gone on uninterruptedly creating peerages in a great variety of ways, and some of them peerages for life, I am not saying too much when I assert that there are ample precedents up to a late period for such creations on the part of the Crown. In fact, there has never been any uniform mode of conferring peerages; some are given without limitation, others with limitation to heirs male, others limited to heirs male of the body, and others again constituting some extraordinary remainders:—I believe, indeed, there is an instance now in the House, which even skips a generation, and then going to the second son of a daughter who was herself not to enjoy the peerage at all; and, again, it has practically made life Peers, by conferring the peerage on persons who were not likely to have any children. Practically, indeed, the Crown has always exercised that discretionary power in the mode of its bestowing peerages that is implied in the axiom "Cujus est dare, ejus est disponere." After the reign of Henry VIII. the noble and learned Lord referred to the cases of women who were made Peeresses for life, dwelling at some length upon those which occurred in the time of Charles II. and the two Georges; but I think that the immoral conduct of the ladies whom he enumerated, rather tended to strengthen the argument for the right of the Crown than to weaken it. Supposing the Sovereign had created Lady Russell a Peeress for life, the enthusiasm of the country in regard to that lady would have effectually prevented any very nice and very curious scrutiny into the limits of the Royal prerogative from being instituted with the view of invalidating the patent. But if the Crown could not only have made illustrious and most exemplary ladies Peeresses for life at that date, without the exercise of its prerogative in doing so being called in question, but could, and actually did, make Peeresses for life of an unpopular King's foreign mistresses, 286 how can the right of the Crown in Baron Parke's instance be disputed? The case of the Countess Rivers instead of confirming the view of the noble and learned Lord, told exactly the other way. Chief Justice Rolle, one of the great Commonwealth judges, cannot be regarded as a very high authority on a question affecting the privileges of Peers, or the prerogatives of the Crown. In Styles' Reports, page 234, it is stated that—The Countesse Rivers put in her plea of privilege of Peerage into Court, and prayed by Serjeant Glin of her counsel that it might be read and allowed. Upon which it was read by Woodward, clark of the Court. After which Rolle Chief Justice said—it is questionable whether a Countesse, made so by patent only for her life, be privileged or no, therefore let her remain in the custody of the sheriff till Saturday, and not to be turned over to the custody of the Mareschall, and then move it again.I imagine that when a case is postponed, on a suggestion of a Judge, in favour of one side, the Counsel on that side invariably looks for every possible authority to strengthen the point in his favour, to which the Judge has already shown a bias. The case having been postponed, no doubt the counsel for this lady searched his books on the point raised by the Judge. But when the case again came on, what do we find—"Latch, of councell against the Countesse, gave many ingenious reasons, such as want of investiture, no relation to the patent to any place, and therefore not an English Countesse, why Lady Rivers should not be arrested, but never once refers to her being a Peeress for life only by her patent;" and the Chief Justice in giving judgment did not refer to the point previously raised by him, but gave an opinion which amounted to the Peerage altogether being nothing but rubbish. Yet this was the case which the noble and learned Lord opposite adduced as showing that these Peerages for life had no bearing on this case. Coke upon Lyttleton, whose authority, where uncontradicted by subsequent law, may be taken to be equivalent to law itself, respecting Sir G. Reynell's case, says—As to precedents for creation for life, remainder to another in tail, and whether the present Viscount Lowther did not come in upon such a remainder, Sir George Reynell's case only decides that certain offices (e. g. the office of Marshal of the Marshalsea) cannot be granted for years, and that such offices in fee or for life have been allowed and approved;" and also this, "That the King cannot grant to any one that he and his executors or administrator shall be Counts or Earls for years, for then his executor 287 or administrators, one being appointed by himself, the other by the ordinary, would be Earls; so, without question, the King may create an Earl for life, in tail, or fee.This was the judgment of the Chief Justice, Chief Baron, and Warburton, Justice. In Book 2, Coke 71, on Lord Abergavenny's case, page 291, it is further stated—But if the King creates any Baron by letters patent, under the great seal, to him, and to his heirs of his body, or for life, &c., then he is a nobleman presently; for so he is expressly created by letters patent of the King, which cannot be countermanded; and he ought to have a writ of summons to Parliament of right and of course, and he shall be tried by his Peers if he shall be arraigned before any Parliament.Lord Coke expresses the same opinion in Book 9 and Book 10. Next to Coke stands the authority of Selden. who, in his Titles of Honour, says—"The estate limited at this day is usually to the heirs male of the body begotten, antiently the limitation was sometimes in fee, sometimes to the heirs of the body, and for life also." Again, page 787—"The forms of creations hitherto showed (of a Viscount) are either for life, or," &c. Page 891—"Lady Mary Compton. &c., whom he created Countess of Buckingham for life." Page 896—"Touching the transmission of dignities by inheritance with us, some cases are obvious in the new Reports and the late Comments on Littleton." In Comyns' Digest, the opinion of Lord Coke is referred to, and the same doctrine laid down. Cruise on Dignities supports the same views.
Blackstone also declares—Creation by writ has also one advantage over that by patent; for a person created by writ holds the dignity to him and his heirs, without any words to that purport in the writ; but in letters patent there must be words to direct the inheritance, else the dignity enures only to the grantee for life. (Co. Lyttleton, 9–16.) For a man or woman may be created noble for their own lives, and the dignity not descend to their heirs at all, or descend only to some particular heirs, as where a peerage is limited to a man and the heirs male of his body by Elizabeth his present lady, and not to such heirs by any former or future wife.When a man is called to the Upper House of Parliament by writ, he is a Baron, and hath inheritance therein without the word [heirs]. Yet may the King limit the general state of inheritance created by the law and custom of the realm to the heirs male, or general, of his body by the writ; as he did to Bromflete, who, in the 27th of Henry VI., was called to Parliament by the name of Lord Vescye, &c., with the limitation in the writ to him and the heirs males of his body. But if he be created by patent, he must of necessity 288 have these words [his heirs], or the heirs males of his body, or the heirs of his body, otherwise he hath no inheritance. The first creation of a Baron by patent that I find was of 'John Beau-champe,' of 'Holte,' created Baron by patent in the 2nd of Richard II., for Barons before that time were called by writ. And it is to be observed that, of ancient times, Earls, &c., were created by girding them with a sword, and nominating him [sic] Earl, &c., of such a county or place; and this, with a calling of him to Parliament by writ by that name, was a sufficient creation of inheritance.Now, considering the high authority which has always been attributed to Blackstone, considering how much he has been quoted, and considering the frequent editions of his work, it is surely some evidence of his having correctly stated the law that none of his subsequent commentators have said one word disputing what he has laid down. I will now refer to a judgment of some importance, which was delivered by a noble and learned Lord who at one period held the Great Seal, and who pronounced the judgment when he was Lord Chancellor. Speaking of the power of the Crown to create a peerage for life, he said that it appeared from the authorities that the Crown had not only the power of creating a peerage for the life of the grantee, but pour autre vie. I may be allowed, perhaps, to say that the case was that of the Earl of Devon, and that the Lord Chancellor was my noble and learned Friend opposite (Lord Brougham). I will now quote the opinion of one who, though not speaking in his judicial character, still, from his great reputation as a lawyer, must speak with great authority as a Peer in this House. On June 27, 1851, Lord Redesdale said—He should propose on a future occasion that the Law, in the same way as the Church, should to a certain extent be represented in their Lordships' House by the holders of certain offices; that they should be admitted to that House as Peers of Parliament during the continuance of holding such offices."—[3 Hansard, cxvij. 1311."]Lord Campbell on that occasion said—That he did not intend to offer any opinion on this suggestion. It might deserve the consideration of their Lordships. His noble Friend proposed that these high officers should have a temporary peerage, to be held only during their tenure of office. Now, this could not be done by an Address to the Crown. The Crown might create, by its prerogative, a peerage for life, but not a peerage during a man's continuance in office; that would require an enactment of the three branches of the Legislature.I think, my Lords, I have now shown something like an authority for the prerogative of the Crown to create a peerage 289 for life; and I venture to appeal to every learned Lord in this House whether they will get up in their places and state that the doctrine laid down by Lord Coke—not contradicted by any subsequent decisions, not affected by any subsequent statutes, not upset by the criticism of any sufficient authority—is not absolutely law in every court of justice in this kingdom, and is not received as such. My noble and learned Friend quoted Mr. Hargrave as an authority—upsetting the doctrine of Lord Coke. My answer to my noble and learned Friend is, that Mr. Hargrave never did any such thing. If he will refer to the note in which that statement is supposed to be made, my noble and learned Friend will observe that it is marked with a letter, and not with a number, and he will also see that it occurs in an edition published long after the death of Mr. Hargrave, and I am not sure whether it was not after the death of Mr. Butler. In an anonymous advertisement to the work it was stated that all the additional notes were by Mr. Butler. That part of the work was not undertaken by Mr. Butler. Mr. Hargrave and Mr. Butler divided the work, and this note was in Mr. Hargrave's part of the work. I do not find fault with my noble and learned Friend for having made much of this, or for having referred to Lord Shaftesbury as an authority upon the subject. But I believe Lord Shaftesbury was praised by the Poet for being clean-handed, but not for his knowledge of the law. I may here quote a passage from a delightful book, to which reference is being made every day. I find in Mr. Macaulay's History of England this passage—"Even Shaftesbury, vigorous as his intellect was, painfully felt his want of technical knowledge;" and in a note is said, "Roger North relates an amusing story of Shaftesbury's embarrassments." My noble and learned Friend will see that, although the note refers to precedents said to have been above mentioned, yet there were no precedents above mentioned by him, which shows that if it was a note at all, and not a portion of an argument, it was but a fragment of a note, and there is no sort of proof that this note, or fragment of note, was ever seen by Mr. Hargrave. It is altogether a posthumous note, and in all probability had been rejected, either by Mr. Hargrave or Mr. Butler. If such notes as this are to be accepted, then the authority of Coke is gone for ever.
290 My noble and learned Friend has talked about the unconstitutionality of creating a peerage for life. Now, I hardly understand how the constitutionality of the question can be abstractedly argued. All that we contend is, that the act of creating a peerage for life is legal, and, if legal, it can also be shown that it is expedient; then it becomes perfectly constitutional. I should like any noble Lord to show in what manner he would define a constitutional act separate from those two qualifications. My noble and learned Friend brought forward an imaginary case of a Minister sending for a whole regiment of the Life Guards, and giving them peerages for life. No doubt such an act of power would only leave to you the alternative of impeaching and hanging the Minister who should be bold enough to adopt it. My noble and learned Friend then proceeded to argue as to the injury that would be done to the character and dignity of your Lordships' House as a judicial tribunal by making those noble Peers who were members of the legal profession an exception to the general principle on which peerages are now created, and he passed a very high and well-deserved panegyric on the members of that profession who have from time to time been advanced to the peerage. I agree with every word which my noble and learned Friend has uttered on that subject. But, my Lords, if I were obliged to take the converse of the proposition of my noble and learned Friend, if it were necessary for my argument to do so, and to point out any noble Lord as being unworthy of sitting here, I certainly should shrink from the task. I should feel it would be highly unbecoming in me, and distasteful to your Lordships, if I were to state of any noble Lord that he was not worthy of the place he holds. But in this case I shall venture to appeal from one eminent lawyer to another, from the living to the dead, with regard to the inconvenience which the noble and learned Lord has slurred over of conferring an hereditary peerage on a lawyer who may be unable to sustain the dignity, either from a want of fortune or some other cause. The letter which I am about to quote was written by a noble and learned Lord who, it is rather remarkable, was Lord Chancellor to an Administration which, as I have already stated, had, at one time, agreed to propose the creation of these life peerages, which proposition was only overruled by one single Member of that Government. 291 It is a letter addressed by Lord Eldon to Lord Kenyon—My dear Lord, I thank you for your letter; and, a fit of the gout preventing me from going to Westminster, I shall now make an effort, though in pain, to trouble you with a few lines. I agree with you that, generally speaking, the Chief Justice of the King's Bench should be a Peer,—even if there had been no usage upon the subject. But then the state of the profession must admit of it. I have not been able to find (in that state) a person fitter for it than Abbott. Now see the effect of this. Lord Mansfield had had long practice in lucrative situations at the bar—he was of a noble family—he was not likely to have descendants—that is, issue. Your father had been, at the bar, the most eminent lawyer of our times; he had made by his practice, independently of the law offices, a larger fortune than any professional man of his time. When called to the King's Bench, I know (I think) myself that peerage was one object with him in accepting the office; and, if Providence had not suffered him to live but the shortest time in the office, a peerage would have gone to his children with ample means to support the dignity. Lord Ellenborough had likewise made some fortune, much less certainly, at the bar; but if he had died before Mr. Way, I doubt whether the peerage there would have been either convenient to the family or useful to the public. As to the Common Pleas, when C. J. de Grey went out, they gave him a peerage in order to find a chief justiceship for Wedderburn. You see that peerage has been obliged to be helped out by office. Lord Loughborough had no children; his peerage therefore, as Lord Loughborough, could not descend, and his office would support him during his life. What he meant, when he left the Chancellorship, by getting an unendowed earldom for his nephew I cannot pretend to say. When I came to the Common Pleas, I had made some fortune in a successful practice at the bar and in the great law offices, which I held nearly twelve years. Mr. Pitt was unwilling to give me an office which would take me out of Parliament; I could not be in it unless in the House of Lords, and I can assure you that I have often thought that, if I had survived the acceptance of the peerage but a short time, I had accepted what would have been a nuisance to my family and no benefit to the public. Of our dear friend Lord A., can anybody now say that it was a wise measure on his part to accept a peerage? Now, as to Abbott, his practice has been behind the bar. He never had any office—I think not a silk gown; he enters, therefore, upon the office in very moderate circumstances, with a considerable family. The permanent offices of profit in the gift of the Chief Justice, as I understand without exception, are not any of them likely to be vacant while he is likely to live or to hold his office; what he can save out of the other emoluments of the office he did not and indeed he could not, think would enable him to transmit with a peerage a fully competent fortune to support it; his health is tender, and his eyesight not in a very safe state: upon the whole, his own difficulty about taking the office was the apprehension that peerage was to go with it. He immediately determined, if it was not. As to himself, this determination appears to me to have been quite right. If a contrary determination would, as to the public, have 292 been right in any other person at the bar, where are you to find one (in whom, in point of circumstances, it had been right with peerage) to whom this great office could have been offered? The Attorney General, from his deafness, could take neither chiefship,—that of the King's Bench could not be offered to so young a man as the Solicitor General. He refused that of the Common Pleas, as not yet having any fortune to leave to his family.Upon the whole, we endeavoured to do the best we could; we could not do what really would have been unexceptionable. It was impossible.God bless you, my dear Lord, and, with all affectionate wishes for you and your family,Believe me yours always,ELDON.I leave it, then, to Lord Eldon to show that there are inconveniences—some of them unknown to the generality of your Lordships—in the creation of hereditary peerages; and your Lordships will not forget that these difficulties are multiplied tenfold now, when all the great legal sinecures have been abolished, and it is difficult, owing to recent reforms of the law, and the greater competition which exists, for barristers to accumulate large fortunes from their professional gains. But let me illustrate my position, without making any invidious allusions, by the case of the noble and learned Lord I now see in his place (Lord Campbell). Without making any impertinent inquires as to his wealth, it is impossible to be unaware that my noble and learned Friend enjoyed a large and lucrative practice; that he possesses very extensive estates in Ireland; that he enjoys the advantage of having one of the few large houses in this town which has the aristocratic appendages of a court and a garden; and that he also has a son who has not shrunk from occupying a prominent position in public life. But imagine the converse of this. At the present moment—and such a fact would not detract in the least from his eminence as a lawyer and his greatness as a judge—my noble and learned Friend might have had no other resources than his salary as a judge; and if his son entertained a distaste for public life—as might possibly be the case, it would have been a hard thing upon Sir John Campbell, and a still harder thing upon this House, if we had been deprived of the advantage of his presence here. And now, my Lords, allow me to refer to the argument which the noble and learned Lord (Lord Lyndhurst) based upon the alleged dependence of this House upon the Crown should life peerages be created. Such an argument seems to me to require very little answer. The noble and learned 293 Lord said that the subjects of such a creation would be subservient to the Crown, because they would be always looking to the Minister of the time being for an hereditary peerage. Now, if these individuals possessed fortune enough to sustain the dignity of an hereditary peerage—and without such a fortune any man must he a fool to wish for it—they would have an undoubted right to look for an advancement of this kind. But is this necessarily to render them servile in their character? Is there no similar influence at work in this House at this moment? Will any one tell me that there is not now in this House one single Lord who wishes to be a Viscount—no Viscount who wishes to be an Earl—no Earl who does not wish to be a Marquess, or Marquess a Duke? Is there not a single Duke who would like to have the knighthood of the Garter, or who would not feel rather hurt if the Lord Lieutenancy of his county were not given to him? And, then, will anybody pretend that those fair objects of ambition make Peers dependent upon a Ministry, or subservient to the Crown? Why, even now you have Scotch and Irish Peers subject to the same influences, as well as the Lords Spiritual, who are also only Peers for life. Is there any pretence for asserting that these persons are subservient to the Crown, and ought therefore to be excluded from this House? Another point upon which the opponents of these life creations rely, is the power which they believe it would confer upon a Minister of swamping your Lordships' House with Peers for life if he so chose. Now, I think we all know what was referred to by the noble and learned Lord opposite when he dwelt upon this point. In the time of William IV. the constitution had arrived almost at a dead lock; and Earl Grey, and the noble and learned Lord opposite (Lord Brougham), felt that they would be backed up by the country, at that time bordering upon a state of revolution, if they advised the Crown to create a number of new Peers. Well, the noble and learned Lord, in a book which is not only useful to Englishmen, but which has been recently quoted by one of the greatest writers on political economy and philosophy of which the Continent can boast, has described that period of excitement; and he says that, if the truth be told, he should have shrunk from advising that exercise of the prerogative, and he believes Earl Grey would have shrunk too. Now, I do not 294 know whether they would have shrunk or not; such a case as this happily does not occur once in a century, or once in two centuries; but I believe, whenever it should occur, any Minister would be alarmed at the idea of making use of the Crown's prerogative in such a way. Suppose, for example, the present Prime Minister, in order to defeat the Motion now before the House, were to ask and obtain the consent of the Crown for the creation of ten peerages. Why, such an act would diminish our majority, whatever it might be, by double that number. To have any effect whatever, not less than forty new Peers must be created; and your Lordships must feel that to create forty Peers is as unfeasible as it would be unconstitutional. If a Minister were to resolve upon such a course, there would be little difference between peerages for life and hereditary peerages, and he would only be splitting hairs if he hesitated between selecting forty such persons as Baron Parke for elevation, and calling up forty eldest sons of Peers, or men not likely to have children; the distinction would be very fine, and a Prime Minister would not be likely to hesitate in the combination of circumstances which must arise to render the measure necessary at all. But, then, the noble and learned Lord thinks this creation of a life peerage must have been made in imitation of some foreign aristocracies. Why, if there is any one thing which has been fatal to foreign aristocracies all over the Continent, it is their great increase in number while there is a proportionate diminution of wealth. Moreover, I do think that, with regard to this prerogative, you must trust a little to the effect of public opinion upon its exercise. Some twenty years ago, an anonymous writer, who turned out to be Sir Harris Nicolas, addressed a pamphlet to the Duke of Wellington, and if I could have circulated that pamphlet among your Lordships I think it would have had more effect with regard to this question than half-a-dozen. speeches from the benches behind me. This tract is very scarce; and that it is of some authority is manifested from the fact that one of your Lordships applied to the British Museum, where a copy of this pamphlet is preserved, but it was in hand; and upon afterwards going to one of the great law libraries, which possessed three copies, he was told that they were all in the hands of three learned Lords, Members of the House of Peers. My Lords, I had 295 taken a great many extracts from this pamphlet, but I will not trouble you with them. In order, however, to show you with what authority Sir H. Nicolas has spoken on this question, I will give you his own summing up of the opinions at which he arrives. He says, first—
I feel that the first half of the last sentence is true, and I hope the latter part is true also. I beg your Lordships to reflect upon the consequence of placing ourselves before the country as seeking to limit the prerogative of the Crown, when that prerogative is exercised with a view to remedy something which is weak, and to remove a certain imminent danger. With regard to the proposal that this patent should go before a Committee of Privileges, the noble and learned Lord has put it so much upon the constitutional ground that I cannot conceive why a Committee of Privileges, which is only the whole House under another name, can be the proper tribunal to consider whether this is a discreet or an indiscreet exercise of prerogative. The noble and learned Lord has dwelt much upon the want of precedent for such a creation. Now I believe the course which he suggests is itself entirely without precedent. Suffer me to quote here what is said by Mr. Cruise, a great authority on this subject, and who in the body of his work On Dignities, introduces the following observations:—
- "1. That the creation of hereditary Peers, without a sufficient estate being annexed to the title to support the dignity, is attended with positive inconvenience to the Government, probable danger to the constitution, and almost certain degradation to the peerage.
- "2. That it is desirable that the country should have the benefit of every description of talent in the House of Lords, calculated to insure the administration of justice in all the various cases brought before it.
- "3. That the impolicy of multiplying hereditary peerages tends to prevent the Crown from placing in the House persons whose peculiar talents and acquirements would be extremely beneficial to the country.
- "4. That any measure which would lessen the number of creations of hereditary peerages would be as satisfactory to the nation at large as to the House of Lords generally."The Crown has from the earliest times claimed and exercised a supreme jurisdiction in all cases respecting the right to peerages. For the mode of proceeding appears always to have been by petition to the King; and the court to which the Crown usually referred such claims was that of the High Constable and Earl Marshal, from which an appeal lay to the King himself. Since the reign of Charles I the usual practice 296 has been for the King to refer claims of peerage to the House of Lords.It will, therefore, be necessary to consider these questions, of which I will only quote three:—"First, Whether that House has any jurisdiction in cases of peerage but by reference from the Crown?" His answer to this is in the negative, and he refers to Lord Hale's statement, that the Lords have no jurisdiction but by reference from the Crown. "Secondly, Whether such reference be discretionary in the Crown?" He answers, Yes it is. "Thirdly, How far the Crown is bound by the Resolutions of the House upon such reference?" With respect to this question, he says—"It does not appear from any authority that the Crown is bound by the Resolutions of the House of Peers." When the noble and learned Lord talks about the future of this House, I cannot help saying that I also have a very strong feeling on this subject. The very small part I have taken in public affairs has been almost exclusively in this House. That I have been enabled to take this small part in public affairs has been owing only to your Lordships' exceeding indulgence, which I have had to claim once more this evening; and I can with perfect conscientiousness say, that one of my strongest political feelings is to maintain the honour and dignity and utility of this House. But I think I am acting in consistency with that feeling when, in company with my noble Friend the noble Marquess (the Marquess of Lansdowne), I try to defend the exercise of a prerogative which I have already described as specially intended for the remedy of defects and the avoidance of danger in this House, and still more when I try to recommend to your Lordships not to take such an utterly unusual step as that of going into a Committee of Privileges, while the noble and learned Lord has as yet entirely refrained from showing what are the steps to be taken when we get into that Committee, and what ulterior results he hopes to gain when we come out of it.
§ LORD ST. LEONARDS
* My Lords, I think it desirable to bring back the discussion to what really is the question before your Lordships. The noble Earl has treated the question as if it were now to be decided whether a lawyer without a sufficient fortune for a peerage, but whose services are required in the House, should be created a Peer for life, or, as in other cases, with a transmissible inheritance to the heirs male of his body. That, however, 297 is not the question. The real question is, whether or not the Crown can, in virtue of its prerogative, grant life peerages to whomsoever it pleases. The subject should be considered on its merits, and treated as an abstract question in respect of the right of the Crown to confer dignities upon whomsoever it may please; for if the principle be admitted, the power may be exercised without reference to the station of the person, and to any extent whatever. My noble and learned Friend, whose authority is much greater than mine, has not, the noble Earl observed, stated that the issuing of such a patent of peerage was illegal, and he dwelt with much force upon the absence of such an assertion. Humble as is my authority, I will supply the omission. I do emphatically assert, and I believe in my conscience, and not without a careful consideration of the subject, that the issuing of a patent of peerage for life is illegal, as far as it attempts to confer a right to sit and vote in this House; and I hope to be able to make good that assertion. The question is one of the highest importance. It is not a question of expediency, but of strict legality. If legal, it may be inexpedient; but is it legal? The days of answering to the country are gone by, but the right of exercising the prerogative of the Crown still remains. Before considering the question of legality, I will say a few words on the point of expediency. The monarchy of this kingdom is an hereditary one, and your Lordships' House has always been called the hereditary Councillors of the Crown. It is this hereditary quality which strikes root, as it were, in the constitution, and gives weight and steadiness to your decisions, qualities which would not be found in a House constituted by Peers for life; and, moreover, a Chamber of Peers for life, chosen by the Crown for a life peerage, would never be able to stand against the House of Commons, elected, as it is, by the popular voice. Hereditary quality has ever been impressed upon this House. When, for example, barony by tenure existed, men were summoned by the Crown by writ of summons, which, of course, contained no restriction to a life interest, but neither did it contain any limitation or reference whatsoever to the heirs of the Baron. But no doubt, by analogy to the tenure in fee of the barony, the simple summons followed by a sitting conferred upon the Baron an estate in the dignity, not as Coke has inaccurately stated in one 298 passage, an estate in fee-simple, but, as he has in another passage accurately stated, ennobles his blood, so as to include all his heirs lineal. The natural check upon an undue creation of Peers is its hereditary quality. Whilst that quality extended to all, none need feel any inferiority in this House. But would it be so if life peerages were introduced?
It was argued that absence of wealth on the part of persons of great ability rendered it inexpedient to bestow an hereditary peerage upon them; but if such a principle were adopted, what would be the result? If men of known ability were made Peers for life, it would be said, had these men been rich, they would have been made hereditary Peers; and, on the other hand, it would be said of men on whom an hereditary peerage might be bestowed, that they had acquired that dignity not on account of their ability, or their merit, but on account of their wealth. Any one of your Lordships who casts his eyes over the number of peerages becoming extinct from natural causes, would see in how short a time the character of this House might be entirely altered by the creation of these life peerages, and that I beg to impress upon your Lordships as a consideration of great importance. So much for the expediency side of the question; upon which, after what has fallen from my noble and learned Friend, I feel it unnecessary to dwell. I will, therefore, at once consider its legality. The great authority relied upon to support the principle of the creation of life peerages is Lord Coke; but, although I have a very high respect for Lord Coke, it is not as an expounder of the law of dignities. But as Lord Coke is relied upon, I would ask your Lordships to consider what he said upon the subject. Coke stated that nobility might be gained by the operation of the law, as, for instance, in the case of a lady marrying a Peer; and, he added, as an estate for life may be gained by marriage, so may the King create either man or woman noble for life, but not for years, because it might go to executors or administrators. Now, to stop here for a moment. Coke only objects to a creation for years because the dignity might go to an executor or administrator; he would, therefore, not have deemed a grant of a peerage for five years invalid, if made dependent on the life of the grantee. Are the Government prepared to adopt that view? In selecting lawyers, for example, 299 far advanced in life, Ministers might calculate the term of years during which they were likely to be serviceable in this House upon Appeals. But the nobility of which Coke was speaking in this passage could not have referred to any right to sit or vote in Parliament, because he distinctly stated that it could be conferred upon a woman by bestowing on her a peerage for life; and your Lordships are well aware that a woman could not sit in Parliament. The noble Earl had referred to a passage in a letter from Sir Harris Nicolas to the Duke of Wellington, and recommended the perusal of it to the noble Lords behind him, with a view to influence their votes. I cannot help thinking that this letter has been the foundation of the attempt now made to introduce peerages for life. I warn your Lordships, however, not to be misled by that letter, which is inaccurate in its facts, and illogical in its reasoning. The noble Earl had quoted a great number of references, but they might all be traced to the parent stock; every one of them was dependent upon Lord Coke's authority. I contend, however, that Coke, in the opinion which he gave, was alluding to the mere grant of an honour, and not to the conferring of any right to sit and vote in this House. If you insist that Coke's opinion makes out the right to grant peerages for life, you do violence both to the language and to the intention of the learned Chief Justice; but if you accept my interpretation of the view taken by Lord Coke, and make his remarks in this place apply merely to an honour, an advancement, and not to a right to sit and vote in this House, the language and opinion would be perfectly consistent with the practice. The cases which Coke had in his mind were probably these—Henry VIII. made two Barons of the Empire Barons of England, but he did not issue any writ of summons, and they never sat or voted in this House. In Coke's own time, also, when he was in great practice, and a great man, James I. granted to Sir James Hay the title of Lord Hay, with precedence next after the Barons of England, but not to enjoy any voice or seat in Parliament. Those examples were followed by Charles I., who granted a Barony for like to Baron Reede (an alien), to hold to him and the heirs male of his body, but without a voice or seat in Parliament; and it was these first cases which justified Coke in the statement which he made, supposing that the interpretation were 300 placed upon the words which I have ventured to point out. Sir Harris Nicolas stated that there were many instances in the time of Richard II. of life peerages, and that it was held by Chief Justice Coke that these creations were strictly legal; and that if a man were created a Peer by patent, without any remainder being mentioned, he has only a life estate in the dignity. Coke, however, says no such thing; but he does say that if a man be created a Baron by letters patent, the state of inheritance must be limited by apt words, or else the grant is void; and in another place he says that the patent must have the words "his heirs, or the heirs male of his body," &c., otherwise he hath no inheritance. He never was in a position to deliver an opinion on the subject as Chief Justice. Now, I assert that it never has been decided that a grant of a life peerage was valid, much less that a grant of a peerage without any words of limitation passed only a life estate. I shall have occasion again to refer to the latter point. Coke in his Comment upon Littleton, refers to Reynell's case, in his Ninth Report, but that is idem per idem. The case turned upon the grant of an office—the Marshal of the Marshalsea—and Coke and two other Judges were called in by the Chancellor to assist him. Coke, as was his wont, and for which he was found fault with by the Judges in his own time, reports the Judges to have agreed to a string of Resolutions, amongst which is one that the King cannot grant to one that he and his executors or administrators shall be Earls for years (for the reasons before stated); so, without question, the King may create an Earl for life in tail or in fee, and the authority referred to is his own Commentary. This passage hardly supports the claim to grant a life Peerage simply; and this and some other passages in his Commentary may well be understood to refer to cases where a dignity is created for life, with remainders over.
I must guard your Lordships against placing much reliance on Coke's authority upon this branch of constitutional law. I will again refer to an instance mentioned by my noble and learned Friend, in which Coke's opinion was delivered with much more authority, and upon the point directly before him, and yet was recently overruled in this House—I allude to the Earl of Shrewsbury's case, which he has reported. The Lords of Council, by letters patent, directed to Lord Chief Justice Coke and 301 two other Judges this question, whether by the Absentees' Act of Henry the Eighth, whereby the estate was forfeited, the earldom of Waterford was forfeited also? Those Judges made a Report to the Lords of Council, in which they stated that, having heard counsel at length, and having considered the case in all its bearings maturely, they were of opinion that the earldom was struck at, as well as the estate, and elaborate reasons are given by Coke in his Report in support of that opinion. Nevertheless that opinion was overruled in this House in 1832, and it was held that the earldom of Waterford was not forfeited. The House acted upon the unanimous opinion of Lord Chancellor Brougham, Lord Lyndhurst, and Lord Plunket, Lord Chancellor of Ireland. I could point to several passages in Coke in which the law of peerage is incorrectly laid down; it is not safe, therefore, to rely upon the great name of Coke in all instances upon the law of dignities.
Another case referred to in support of life peerages is in the year books, in the 32 Hen. VI., where the question turned upon the effect of an earldom descending to a plaintiff pending the action, whereby his designation was altered; and Danby, in argument, put the case of a man being made Earl pur autre vie, and brings his action as such, and during the action, cestui que vie dies, by which he has lost his name of Earl; and he argued that the action should abate, and so in the principal case. It is said how familiar the law must have been when counsel were permitted to refer to it as perfectly settled. This is really carrying the weight of argument too far; but Danby does not speak of a creation by the authority of the Crown alone; he no doubt had in his mind the creation some years previously, by Richard the Second, of Edward—eldest son of his uncle, Edmond, Duke of York—as Earl of Rutland, for the life of his father, with a provision for him during the Duke's life. But this is no authority for the creation of a peerage for another man's life. Edward was the Duke's eldest son, and therefore would sit at once with, in effect, an hereditary peerage. It was similar in its operation to the present plan of calling up to this House an eldest son in his father's lifetime; and the circumstance that the Duke might forfeit his dignity by treason, is entitled to no weight in his view. Besides, what at once removes the case as an authority on the point under discussion, 302 the dignity, as appears by the Parliamentary Rolls, was granted in full Parliament, and with the assent of Parliament. It is unsafe at this day to rely upon any ancient grant of a peerage not supported by the general law, and not followed in later times. For example, Edward IV., in 1479, created the Prince of Wales, afterwards Edward V., Earl of March, to hold to him and his heirs during the King's pleasure. This dignity became merged in the Crown; but, following it as a precedent, if the grant now under consideration be valid, the learned Baron might have been created a Baron during his life and the Queen's pleasure.
I will now shortly call your Lordships' attention to some of the numerous alterations in the law of dignities, simply to show how the law has been altered from time to time, not by Act of Parliament, but by decisions or acts of this House, and how unsafe, therefore, it would be to rely upon any learned writer, without tracing the law and the practice through later periods. It was at one time held that the husband of a Peeress in her own right was entitled to the peerage during their joint lives. This was ruled otherwise by Henry VIII. with great assistance, because the dignity would shift from the husband upon the death of his wife, which was deemed objectionable. The next question was, whether a man could in like case be tenant by the courtesy of his wife's dignity, where there was issue, who might inherit the dignity, and Henry VIII. in the same case ruled that in analogy to the husband's right in real estate, he might take as tenant by the courtesy; but upon a claim to the Barony of Willoughby, Elizabeth referred this question to Commissioners whose opinion was against the right, and that is now a settled point. Again, it was considered that a Peer could alienate his peerage with the consent of the Crown, and that he could surrender it to the Crown; for as he could alienate or surrender his barony, so he might dispose in like manner of his dignity; but in both instances it was ruled otherwise, and the law on those points has long been settled. Of surrenders, there were numerous instances which had never been questioned; but upon a claim to the barony of Grey of Ruthyn, in 1640, whore the right did not depend upon this question, yet as the counsel had dealt freely with it, the House fired up, and resolved, nem. con.: 1. That dignities could not be aliened or transferred. 2. 303 That no Peer could drown or extinguish his honour—but that it descends to his descendants—neither by surrender, grant, fine, nor any other conveyance to the King. Twenty years afterwards, the point was regularly raised upon the validity of the transfer and surrender by fine of his dignity by Viscount Purbeck to the King; and, after elaborate arguments, it was decided that the surrender was inoperative; and thus the law has ever since remained. Now numerous instances of surrenders were quoted in the Purbeck case. Lord Shaftesbury, who had been Chancellor the year before, but upon whose legal knowledge the noble Earl has commented with some severity, spoke remarkably well against the claim of the Crown, and relied upon the fact that the surrenders were passed sub silentio, and never admitted of any dispute. Jones, the Attorney General, in his argument, spoke of peerages for life, as if free from doubt; for which Lord Shaftesbury justly rebuked him, as being a point of greater consequence than the thing in debate: it was not a fair way of arguing; it was not to be allowed of. This case proves that if there were any precedents in favour of life peerages—I deny that there are any—they would be of no authority, inasmuch as they break in upon the general law as to peerages, and have never been considered by this House. To proceed with a few more examples. Upon a descent to females, it was formerly considered that the eldest was entitled, and that the Crown could confer the right on the husband of any. It is now settled that the dignity is in abeyance. The power to determine the abeyance is in the Crown, but it can only be exercised in favour of one of the co-heirs. Formerly it was held that the King might degrade a Peer for poverty, but it has long been settled that this can only be done by Parliament. Coke lays it down expressly that if a Duchess marries a Baron, she remains a Duchess, and loses not her name, because her husband is noble; yet other authorities were opposed to this view; and upon the coronation of George III. the Duchess Dowager of Leeds, who had married Lord Poltimore, was not allowed to walk as a Duchess.
I propose now to call your Lordships' attention to a remarkable case, for the double purpose of showing an alteration in the law, and the mode in which my noble and learned Friend might have proceeded if he had not adopted the mild course of moving to refer the question to 304 a Committee; he might, consistently with authority, have moved a Resolution, that the Crown had not the power to grant a simple life peerage. The case arose after the union with Scotland, upon the grant of the English dukedom of Brandon to the Duke of Hamilton. It was a remarkable case. The House, upon Motion, took the Duke's claim into consideration; and after hearing counsel on all sides, in the presence of the twelve Judges, resolved,—1. That no question should be put to the Judges; and, 2. The right of Scotch Peers, created Peers of Great Britain since the Union, to sit in this House, was negatived. There was much to be said in favour of this Resolution; yet, upon the same question being again raised in 1782, it was ruled by the House in favour of such grants, and that is now the settled law. I have quoted these examples, not as bearing upon the particular case before your Lordships, but as showing what the fluctuations of the law have been, and that we cannot with safety merely refer to the opinion of Lord Coke, or of any other great lawyer, and say that such is the law of the land. The point is now, for the first time, before your Lordships; and if ever there was an occasion on which you were called upon to exercise an independent judgment, untrammelled by authority, it is the present. It is now your duty, for the sake of everything you hold sacred, to maintain the hereditary principle of this House. The question now before the House is, whether this patent is legal or not. I venture to assert that there is not on record a single case that supports the proposition contended for, namely, that the Crown, simply by its own authority, and without the aid of Parliament, can create a Commoner a Peer for life, and place him upon the benches of this House, with a right to vote.
I now propose to examine the cases which are brought forward in order to establish the validity of life peerages, and to make good my assertion, that none of them proves the validity of such grants. The first case is that of Guiscard D'Angoulesme; he and his father were both severely wounded at the battle of Poictiers; he was left on the field for dead, but recovered, and passed into the service of England; he was much employed by Edward III. and by the Black Prince, and when Richard II. was crowned in his boyhood, Guiscard was appointed his tutor, and was created Earl of Huntingdon for 305 his whole life. He was summoned to Parliament; but as a foreigner, he could not sit; it does not appear that he did sit; he died at the end of three years without issue. It is not probable that at such a moment this appointment would be questioned; but surely it cannot at this day be made a precedent to justify such a departure from long-established law and practice ns that before your Lordships. Let me call your attention to what Edward III. himself did in the case of an alien on whom he desired to bestow an earldom. Instead of venturing, like those who acted in the name of Richard II., to create such an earldom of his own authority, the Chancellor declared to the Parliament the marriage of the King's daughter to the Lord Coucy, who had fair living in England and elsewhere, and that it was for the honour of the King to create him an Earl, which all the Lords thought good; but Cotton tells us that, "but that for the King was not determined of what name, there was no more therein done;" he was, however, immediately made Earl of Bedford, which title became extinct by his death without issue male. It is remarked by Mr. West (who for a short remaining period of his life was Chancellor of Ireland, and who wrote a book on dignities with a particular view to the Peerage Bill in 1719), that in this case the opinion of the Peers was asked of each separately, and "chacun per soy;" and the Commons, with one assent, granted what the King desired. So that even in the case of his son-in-law, Edward III. did not venture to act without the authority of Parliament taken in the most solemn manner. In the 1st of Richard II. there is another instance of a grant of an earldom without the authority of Parliament. Thomas, Earl of Wodstoke, was created Earl of Bucks, and yet, in the 14th of Richard II., for the security of the Earl, a new grant was made of the same earldom, with the assent of the Prelates, and Peers, and Commons.
The next case relied upon is that of the favourite, Robert de Vere, Earl of Oxford, who was created Marquess of Dublin (being the first creation to that dignity) for his whole life. He was afterwards made Duke of Ireland; and Stow ridicules these pompous titles. Now, in the first place, the Marquess was already an Earl, with a descendible estate, so that he and his issue male would continue to sit just as if the marquessate had never been created. But 306 this was not the mere creation of a dignity for life; it was also a grant of Ireland, of the dominion of the land; all Earls and Barons were to do service to him; he was at liberty to coin; and all the lands which he conquered were vested in him in fee. It was one of the grossest cases of the transfers by the Crown of property and title that ever occurred. It was, to be sure, subject to the trifling obligation to subjugate the Irish at his own charges. But what removes it altogether from the list of supposed authorities is, that the patent was granted in full Parliament, and with the assent of Parliament, and was confirmed by Parliament. That is conclusive.
The next instance is that of the creation, by Richard II., of John, Duke of Lancaster, (the King's uncle) Duke of Aquitaine, for his whole life. This really was a grant of the dukedom, to hold the same, during his life, of the King, as of the King of France, as largely as ever the King held the same, saving only to the King, as to the King of France, the direct dominion of the same duchy. It therefore had relation only to France, and did not affect the English Peerage; nor, indeed, could it, for the Dukedom of Lancaster gave to the Duke and to his issue male all that the other dukedom, if treated as an English Peerage, could give to him; and, as a later dignity, it could never interfere even with his precedence in this House. This grant was made one of the subjects of impeachment. The grant, besides, cannot influence this question, because, as in the last case, it was made by assent of Parliament.
The last on the list in the reign of Richard II. is the grant to his cousin, the Countess of Norfolk, of the rank of Duchess for her whole life. It is observable that this creation was in Parliament, and at the same time a large number of the highest dignities were granted to men and the heirs male of their bodies. This lady was already a Countess. It was the commencement of the grants to women for life. They are much relied upon by the advocates for life Peerages, but they appear to bear forcibly against the present claim, for they do not interfere with the composition of this House, as women cannot sit here; they are intended merely as honorary rank, without reference to this House. No such clause is introduced into these patents as was inserted in the patents of James I. and Charles I., that the grantee shall not have place or voice in Parliament, 307 simply because it was unnecessary. It is a circumstance entitled to great weight, that, whilst for the last 400 years such grants have constantly been made by the authority of the Crown, down to our own time, there is not one single instance in which such a grant has been made to a man until the issuing of the present patent. The frequent creations of women as Peeresses for life make the case much stronger than if the creation of life peerages had altogether ceased during this long period. It is observable, too, that whilst Peerages for life have thus been granted to women, the Crown, by its patents of creation of men, has carefully confined the limitations to their male heirs, so as to exclude females, who would take under a common writ of summons.
For the authorities we are now to pass on to Henry V. In his second year, the King created John of Lancaster, his brother, Earl of Kendal and Duke of Bedford, to hold during his natural life; and at the same time he created his other brother, Humphrey, Earl of Pembroke and Duke of Gloucester for life; and Richard of York Earl of Cambridge; the latter, it appears, without any limitation, and "which, therefore, has been treated as a Peerage for life only." The two former were extended subsequently to the heirs male of their bodies severally, and all the original creations were in Parliament, and the subsequent extension was made with the assent of Parliament. The earldom merged in the Crown; but no one is authorised to say that the grant, being without words of limitation, did not pass an inheritance. I am not called upon to express any opinion upon the subject; but it would be singular, if a life estate only was intended, that the words "during his life" should not have been added to the earldom, as they were to the dukedoms. But as an inheritance passed by a writ of summons without words for that purpose, and as a patent was merely a substitution for the creation by writ, one should have been prepared to find that a creation by patent not confined to life, although without words of limitation, conferred an inheritable dignity on the grandee. It is remarkable that this point has never been decided; and, as far as I am aware, never has been ripe for decision. I have already said enough on the subject of Coke's authority on the law of dignities, where he had no decision of a competent tribunal to guide him. As these three grants were in Parliament, 308 they, independently of other grounds, are no authorities on this subject.
The next creation relied upon is that by Henry V., of Thomas, Earl of Dorset (the King's brother); he was created, it is stated, Duke of Exeter "for his natural life." Stow makes no mention of its being confined for life, but it is so expressly stated by Dugdale, from which it has been inferred that he considered it was, in law, confined to the Duke's life. Now, in point of fact, the grant was general, and there were no words confining it to the Duke's life. Dugdale, in mere error, states it to have been a creation for his natural life; he does not come to that conclusion from the want of words of limitation; he makes no such statement. I have already observed upon the effect of such a general grant: no question ever arose upon the operation of this grant, because the Duke died the year after his creation, without issue. It will be observed that he was already an Earl; and as he was created a Duke in Parliament, I need not further remark upon his creation.
The last creation relied upon in the reign of Henry V. is that in 1417, of the Earl of Warwick, who was created Earl of Albemarle for life. Albemarle was originally Aumerle, and the creation was clearly with a view to the Earl's services in France. It was, as regarded England, in effect honorary. He was already an Earl, and his earldom was descendible to his issue male. The new creation could have no operation in this House; it was of the same degree, and by a later creation; the Earl could not multiply himself, and sit in two places, or give two votes.
The last case bearing upon this point is in the time of Henry VI. In 1411 Sir John Cornewall, who had married the King's aunt, was created Baron Faunhope, and in 1444 (20 Hen. VI.) he was created Baron Milbroke. Sir H. Nicolas treats both these as grants for life, for which he had no sufficient warrant. They were both without words of limitation, and I will not re-discuss their operation; but it is remarkable that this is the only instance brought forward as of a barony by patent for life, although, as we have seen, there were no such words in the patent. The question as to its operation never arose; he died the year after the last patent without issue. It is singular that the first barony created by patent was to the grantee and the heirs male of his body; the second was that of Faunhope, and it 309 was without either words of restriction or of limitation. I must leave it to your Lordships to draw the conclusion. And, finally, these grants of Faunhope and Milbroke were made by assent of Parliament, which displaces them as authorities on the point under consideration; and the latter patent was, with all rights, privileges, and immunities, as largely and in the same form as other Barons. They can by no fair reasoning be deemed authorities for this naked grant of a Barony expressly for life, if even they had not had the aid of Parliament. Your Lordships will not fail to have observed that most of the creations relied upon were to members of the family of the King for the time being, and in those times Kings endeavoured to make up for the uncertainty of their tenure by a rigorous exertion of their authority whilst it lasted. Such exercises of authority, which no one dared to impugn, afford us in these days but little light in regard to the true rights of the Crown.
I have said that Sir John Cornewall's was the last creation relied upon; but the supporters of this prerogative have ventured to bring forward the earldom of Thomond, created by Henry VIII., in 1543. It was created, as my noble and learned Friend has stated, upon the surrender to the King of the Principality of Maurice O'Brien, which it was of great importance to the King to obtain, and the King, therefore, was not likely to refuse a grant of any dignity which would be acceptable to the O'Briens. The earldom of Thomond was granted to Maurice for life, with remainder to his nephew Conan (whom, in truth, he had deposed) for life; but each of them was at the same time created a Baron in the usual way to him and his heirs male, so that each sat in respect of a descendible estate, although a higher title was limited to each in succession for life. The nephew, however, survived his uncle, and he surrendered his dignities, and had a new grant in 1552 to him and the heirs male of his body; this, therefore, forms no precedent; by our law the surrender was void; but we may dismiss this case as an authority, with this one observation, that it was the creation of an Irish peerage, and we are now inquiring into the nature of English dignities, and not into the rules which govern Irish or Scotch dignities.
It appears, then, that in every case of the creation of a life peerage, the authority of Parliament was obtained, as essential 310 to its validity; and to such creations no objection on the ground of illegality can he raised. No one disputes the right of the Crown to create dignities without the aid of Parliament; but I must observe, that it has long been exercised in such cases only as the hereditary nature of the peerage warrants; for ever since the power of Parliament has ceased to be called in aid, the Crown has ceased to create peerages for life, conferring a right to sit and vote in this House.
It has been argued, that as the Crown formerly withheld writs of summons at its pleasure, life estates in dignities were then virtually created. This argument is easily answered. The writ of summons issued in the first instance followed by a sitting created an hereditary peerage beyond, indeed, what is now ever granted. The learned Cotton clears up this difficulty. He says—If any reader desire to know why all the noblemen and Peers of England were not always equally mentioned in writs of summons to our Parliament, but sometimes divers of them omitted, the reasons thereof will appear to be these:—1. The new creations of many of them from time. to time. 2. Their absence in foreign wars and services beyond the seas. 3. Their attainders of treason, by reason of insurrections and our civil wars. 4. Their nonage or death without issue male. In which three last cases no writs of summons were directed to them till their return into England, their attainder repealed, they and their heirs restored, or their heirs become of full age; otherwise they were all of course and right constantly summoned.Reliance, my Lords, is then placed on the numerous creations of life estates in dignities, with remainders over to a particular line of heirs male. Now, it strikes me that these creations are also strongly adverse to the claim of the Crown to grant a mere life peerage standing by itself; for the former have been regularly granted without objection; whereas, for 400 years, the latter has in no instance been attempted.
It is altogether a mistake to suppose, as I have before observed, that the objection is to the creation of a life estate in a peerage; the objection is to such a creation, unaccompanied by remainders, rendering the peerage hereditary, although to a particular class of issue male. In truth, none of your Lordships holds more than a life estate in his dignity, although it is transmissible to his issue male, for of course be can only enjoy it for his life; and although it is transmissible, yet it cannot be alienated or surrendered. The question 311 upon a new creation is, has the Crown raised an hereditary dignity? If it has, it is immaterial whether or not a life estate has been created in it; the dignity will vest in a male issue designated, and the seat in this House will be regularly filled by an heir male. Frequently the creation of a life estate in such patents is merely verbal. Take, for example, the earldom of Vane, created for the late Marquess of Londonderry, in order to provide for the issue male of his second marriage; it might either have been limited to the Marquess for life, with remainder to his heirs male of the second marriage, or to him and the heirs male of the second marriage by one limitation. I must repeat, that for a period of 400 years the Crown has not attempted to exercise this right; and I cannot help thinking that the raising of this question now is as wanton and unnecessary an act as it is a highly inexpedient one. It was, no doubt, the wish of the Ministry to establish by this case a precedent for future imitation, and it is, therefore, the duty of your Lordships firmly to declare your uncompromising opposition to such an unconstitutional proceeding at the very outset. The learned Judge, who is personally concerned in this matter—a lawyer of great eminence and unimpeachable character—is so circumstanced as to render it morally certain that there would he no claimant after him to the inheritance had his peerage been made hereditary; and, therefore, the excuse pleaded for limiting his title to his own life—that it was not desirable to bestow hereditary peerages on lawyers whose fortunes were insufficient to found a family—is, in this instance, wholly inadmissible. The cases and arguments that have been cited to support this innovation are inapplicable, and utterly beside the point in dispute.
The position of the bishops and of the Irish and Scottish representative Peers in this House has been referred to. Now, no doubt originally the Lords Spiritual sat in that Assembly in right of their baronies; and those baronies had long ceased to exist. Still, they sat there in virtue of the sees to which they had been appointed, and those sees were always filled, and represented in that House. An unbroken succession in perpetuity was thereby maintained. The sees are always represented, and in that view the dignity is perpetual, although not hereditary, so that there is no shadow of analogy between the case of the episcopal bench and that of a lay peerage for life. 312 Then, as to the Irish and Scottish Peers, every such Peer who sat in this House was possessed of an hereditary peerage; he came there after being duly elected by possessors of the like inheritances, and did not occupy the anomalous position of a mere life-renter. These Peers, having a patent which extended to their children in succession after them, sat there when elected with as good a right and with as much honour and dignity as any other Member of that House. Indeed, they not only were Peers by descent, but they represented the whole class to which they belonged, but for whom there is not room in this House. The noble Earl, in support of the act of the Government, related to them a conversation which took place between the then Ministers and a certain Judge, in the year 1851, with reference to a measure of this kind that was then contemplated. Surely the noble Lord did not seriously think that a story about a I conversation happening in the way he described could carry any just weight with your Lordships on a constitutional question of this magnitude.
But it does not seem to have occurred to the noble Earl that a desire in recent times to try this right, not followed up by an exercise of it, is evidence of an opinion that it could not be legally or constitutionally exercised. It appears to me, my Lords, that the grant of this life peerage is an infringement of the spirit and meaning of the two Acts of Union with Scotland and Ireland. It never, I think, occurred to the framers of those great national treaties, that the Crown would be aide to create naked estates for life in dignities. What rank would the families of such dignitaries fill? Upon a somewhat careful consideration of the Peerage Bill in 1719, it appears to me that neither the supporters of that measure, nor those who opposed it, supposed it to be in the power of the Crown to create a naked life peerage.
My Lords, I can refer your Lordships to other instances of the opinions of great authorities against the right now claimed. Somers, whom a Whig Government will not deny to have been a great constitutional lawyer, had only for a few years been in extensive practice, and his fortune was altogether insufficient to maintain a peerage when he was called upon by the King to take his seat in this House as Lord Keeper or Lord Chancellor: he was sent for, and told that his services could 313 not be dispensed with; as he could not accept a peerage, he sat in this House to hear appeals, but not as a Peer, thus placing himself in the painful situation of not being able to speak in the House. Your Lordships will find this stated in Macaulay's fourth volume. Now all this might have been avoided by giving to him a peerage for life, for here will was not wanting on either side to grant or to accept an hereditary peerage; but poverty forbade it. A peerage for life, therefore, with the certainty of its extension to his issue male when he desired it, would have removed all difficulty; but that was a course which never occurred to the mind of this great lawyer. Does any man believe that it occurred, to the Ministers of Queen Anne, when the twelve Peers were created, that they could confine them to life estates? and can any one doubt that the whole law and practice in regard to life peerages was before them? It is plain, I think, that when a large creation of Peers was threatened, in order to carry the Reform Bill, not that the Government of that day were ignorant of the state the la was to the creation of life peerages, but that they deemed such a creation illegal; for, considering the power they had obtained from the Crown, the unconstitutional nature of the measure could hardly have increased their difficulty. My noble and learned Friend behind me (Lord Brougham) has told us, in one of his publications, how they proposed to supply the requisite number by eldest sons of Peers, and the like, and how difficult it was to make up the required number; and yet not a word is said about life peerages. If even they deemed such a step legal, they might well shrink from the danger of permanently reducing the power and usefulness of this House, whilst they were about to increase for ever to so great a degree the power and influence of the other House. It is impossible to look through our history since the Revolution without being impressed with the belief that at various periods the wish to create life peerages existed, although no Minister was found bold enough to advise the exercise of the right.
My Lords, I ought to beg pardon for detaining your Lordships so long. The great importance of the subject is my excuse. I do trust that, after the full consideration of the case, Her Majesty's Government will advise Her Majesty to extend the patent in question to heirs 314 male in the usual way, when we shall hail the admission into this House of the noble; and learned Baron.
THE LORD CHANCELLOR
said, that their Lordships were called upon to say "Aye" or "No" to the Motion of his noble and learned Friend, whether they would or would not refer to a Committee of Privileges the patent which Her Majesty had been pleased to pass in favour of one whom he must designate as his noble and learned Friend Lord Wensleydale, and for them to consider and report upon the same. The alleged ground—and he sincerely believed the real ground—which had induced their Lordships to take so deep an interest in this matter was, that they thought it involved constitutional doctrines of a very important nature. But it behoved their Lordships to take care that in attempting to vindicate the constitution by such a mode, they did not themselves trench upon it, and infringe upon the prerogative of the Crown, in proceeding upon a matter in which their Lordships had no original authority or jurisdiction. He might be wrong, but he thought he should satisfy their Lordships that there was no precedent whatever, except one which was easily distinguishable, to warrant their Lordships in the course they were now asked to pursue. What were the legal consequences of a grant of nobility? He would take it upon himself to say that they were all privileges; and rights without the walls of that House. That which gave the right to a Peer to sit in their Lordships' House was not the; patent, but the writ of summons which he was entitled to receive in consequence of his patent of nobility; and the question whether a person was or was not entitled to such a writ rested entirely with the Crown to decide. In former times the Crown was in the habit of consulting some of the Judges, or some of the Privy Council, on the question whether any one claiming a writ of summons was or was not entitled to it; but in later times—i. e. during the last century and a half or two centuries—the question had been invariably referred by the Crown to the House of Lords, who I report their opinion thereon to the Crown, and the Crown would doubtless be very ill advised if it did not act upon the opinion given by their Lordships. But it was laid down in the books as the universal doctrine—and he denied that any authority could be adduced to the contrary—that in this matter the House of Lords had no original jurisdiction. They had no right to say whether 315 a patent granted by the Crown was or was not valid, more than they had to inquire whether any man's title to his estate was or was not valid. If it was not valid, then the Crown would not be hound as of right to issue a writ of summons; if it was valid, then the person would be entitled to such a writ; but if the Crown entertained any doubt upon the subject, then the Crown would refer the question to that House. He defied their Lordships to produce a single instance in which the House of Lords had intrenched upon the prerogative of the Crown by telling the Crown that the grant it had made was invalid and void. He repeated that the rights conferred by a patent of nobility were rights outside of that House. There were some most important privileges conveyed by such patent; among them, no doubt, was the right of demanding a writ of summons to sit in the House of Peers. There were, moreover, other privileges not connected with the House, such as the right of being tried by one's Peers, freedom from arrest, and others. Those rights could not be affected by any decision which their Lordships could arrive at. Let him suppose that a question of this sort was referred to a Committee of Privileges, and that the Committee had determined that the patent was invalid; and then let him further suppose—he really must beg his noble and learned Friend Lord Wensleydale's pardon for the supposition—that the party was charged with a felony, and was indicted in a court of law, and that he pleaded that he was a Peer of Parliament, to which it was answered that the patent to nobility had been declared invalid by a Committee of Privileges; what would the courts of law say to that decision? They would wholly disregard it. This was no imaginary case. It had occurred long since. In the time of William III., Charles Knollis, in answer to a charge of murder, pleaded that he was Earl of Banbury. To this it was replied, that he was not the lineal descendant of the party to whom the patent had been originally granted, and that Parliament had so decided. Lord Chief Justice Holt, who presided at the trial, said that the decision of Parliament was no authority, and that the Court must look to the patent itself and ascertain, as a matter of fact, whether he was a lineal descendant of the Earl of Banbury, in order to see whether the Court had any authority to adjudicate upon the question before it or not. The plea of the party 316 prevailed, and thereupon the House of Peers of that day did what their Lordships would never do; they adopted the exceedingly unfortunate course of summoning the Chief Justice to the bar of the House to inquire into the reason for his acting as he had done. Lord Chief Justice Holt, in conformity with the constitutional firmness of his character, respectfully but firmly declined giving any reason for his conduct. He (the Lord Chancellor) had referred to that case, in order to show that a question upon the peerage could not be decided conclusively by their Lordships. What could they decide? They could not decide by seeing the patent that Lord Wensleydale had no right to sit by virtue of a writ of summons. If Lord Wensleydale presented himself at the bar of this House with a writ of summons, upon what authority could he be kept out? Should their Lordships attempt to assert such an authority they would be attempting a most dangerous infringement upon the constitution. The truth was, this question was being raised before it could be legitimately raised. When at, he hoped, some far distant day, his noble and learned Friend Lord Wensleydale should be gathered to his fathers, and when his grandson shall petition the Crown and claim to be entitled to a writ of summons, then, and not until then, would be the time when this question would legitimately arise, and their Lordships would have to decide whether it was a valid patent or not. If the patent is valid, it will explain why the writ of summons was issued to Lord Wensleydale, and will show that after his death no right to any further summons exists. If the patent is invalid, then Lord Wensleydale, by sitting under a writ of summons, without any valid patent to qualify it, will have acquired a barony to him and his heirs general. He pointed this out because he considered it his duty and theirs studiously to take care that, in defending what they considered to be one branch of the constitution, they did not inadvertently trench to a most dangerous degree upon another branch—namely, the solo prerogative of the Crown to decide who were entitled to writs of summons. He was aware that there was one instance, which had been much relied upon in the present discussion, in which a course nearly similar to this was taken. It was the case of the grant by the Crown of the dignity of Duke of Brandon to the Scotch Duke of Hamilton. Queen Anne, shortly after the Union, granted this nobleman the dignity of Duke 317 of Brandon in Great Britain; whereupon notice was entered upon the journals on Wednesday, December 12, 1711, that the House would take the subject into consideration on the following Thursday. Now, if such consideration was thought necessary with regard to the patent, this was the proper course to take; the whole House, and not a Committee of Privileges, was to deliberate upon the subject. Accordingly a great debate took place—for the question then assumed, what he hoped the present would not, a strong party aspect. The question of the validity of the patent—that is, the power of the Crown to grant a British dukedom to a Scotch Peer—was discussed in the presence of the Judges; and a Motion was made that the Judges should deliver their opinions. That Motion was, however, resisted—no doubt because it was pretty well known what the opinion of the Judges would be:—the House refused to put the question of validity to the Judges, and ultimately decided of themselves that the Crown did not possess such a power of creation as that involved in the patent before them. This was the precedent upon which, he presumed, reliance was placed by the noble and learned Lord (Lord Lyndhurst), who accordingly asked the House, through their Committee of Privileges, to decide that a patent passed under the Great Seal was an invalid patent. Now, this, which he would take upon himself to say was the sole precedent for the course which the House was invited to take, was not a very promising authority. The conclusion come to in 1711 was palpably wrong, and in 1782, when the grandson of the Duke of Brandon applied to the Crown for his writ of summons to the House of Peers as Duke of Brandon, the question was referred constitutionally and properly by the Crown to the House, and they in effect overruled the former decision. Since he (the Lord Chancellor) had come into the House, he had been reminded of what had passed last Session. The question then was whether Lord Fermoy had been properly created an Irish Peer. The matter had only been referred to conversationally, and the reference to the Committee of Privileges in that case bad passed sub silentio, for the case had been felt to be one of great urgency, and every one had been anxious to put his shoulder to the wheel in order to obtain a decision. In truth, it affords no authority for the course now pursued; for by the act of the Union 318 with Ireland, all questions as to the election of Irish Peers are in terms referred to this House. The case of the Duke of Brandon in 1711, was the only authority for the course which they were now asked to adopt; and therefore it was that, independently of the merits of the case, so to say, he protested against such a course as a most unconstitutional attempt on the part of their Lordships to arrogate to themselves a prerogative which they did not possess and had never exercised, except in the single instance of the Duke of Brandon, to which he had referred. In that, instance, too, there were circumstances which distinguished it entirely from the present case. The question there raised was, that the person to whom the patent was granted was incapacitated by law to receive such a patent, and that, consequently, it was just like a patent granted to a foreigner, or a minor, or a woman, neither of whom, if they obtained a writ of summons from the Crown, would be allowed by their Lordships to act upon it. But, while raising this point, let it not be supposed that he wished to shrink from the main question. His noble and learned Friend (Lord St. Leonards), going beyond the ground which the Mover of the Resolution had ventured to take, had expressed the opinion that the grant of life peerages was an illegal grant. He (the Lord Chancellor) should like to know what was the meaning of its being illegal? Did his noble and learned Friend mean that no rights whatever were conferred by the patent? It might not entitle the holder to a writ of summons, but it was impossible to say that such a patent conferred no rights at all. For his own part, he must say that be never approached a subject more confidently than the present; and as his noble and learned Friend (Lord St. Leonards) expressed himself with equal confidence, their mutual confidence and mutual disagreement afforded, he confessed, an exhibition not very creditable as far as the certainty of the law was concerned. He contended distinctly that the patent was a legal act, and one which entitled his noble and learned Friend (Lord Wensleydale) to a writ of summons to attend this House. Whether fortunately or unfortunately he would not say, but they had no code of laws to refer to on this subject. They only knew their law by referring to those decisions and those writings in which learned men from time to time had handed 319 down the traditions of our Saxon and Norman ancestors. In the first place, then, there was Lord Coke—he was almost ashamed to refer to that eminent lawyer again; but on this question of legality or illegality he felt that he was on his trial before their Lordships, for, supposing this to be an illegal act, he did not know but what he might he impeached for it, and certainly he ought to be visited with its severest censure, unless his having taken considerable pains to arrive at the truth were admitted as an excuse. He felt that he was the constitutional law Minister of the Crown, and, as such, he had not hesitated a single moment as to the legality of granting this patent. The first authority to which he would refer in support of his opinion that the creation of a life peerage was legal and constitutional was Lord Coke; and, as to the value which ought to be attached to the opinion of Lord Coke, he would quote a passage from a book written by one of the most eminent of living lawyers, and he felt the less reluctance in quoting from it because it was not a law book. The book to which he referred was entitled The Lives of the Chief Justices, and was written by a noble and learned Friend whom he saw near him (Lord Campbell). The noble and learned Lord Chief Justice spoke of him as "a considerable person in our history." It was to him we owed the Petition of Rights.We are obliged" (says Lord Campbell, vol. i. p. 338) "to regard a, man, with so little about him that is ornamental or attractive, as a very considerable personage in the history of his country. Belonging to an age of gigantic intellect and gigantic attainments, he was admired by his contemporaries, and time has in no degree impaired his fame. For a profound knowledge of the common law of England he stands unrivalled.And a little further on, he says—He was familiar to us as a lawyer. Smart legal practitioners who are only desirous of making money of their profession, neglect his works, but they continue to be studied by all who wish to know history and acquire a scientific knowledge of our political and judicial institutions.And he goes on to say, p. 340,—His opus magnum is his comment on Lyttleton, which of itself may be said to contain the whole common law of England.He (the Lord Chancellor) had read that extract in order to show that he should not be very far wrong in relying upon what was said by Lord Coke; and, indeed, if he did err, he might say with truth, si erro, erro cum Platone. Such being 320 the weight attributable to Lord Coke as an authority, let us see what he says. In Coke upon Littleton, the opus magnum, is this passage: —"The King may create either man or woman noble for life, but not for years, because then it might go to executors or administrators." He had been much surprised at the argument used by his noble and learned Friend, who had referred to Lord Coke's dictum, that nobility might arise by the Crown conferring a peerage for life, and had endeavoured to interpret that opinion into meaning simply that nobility so conferred might give precedence, but that it conferred no right to sit in Parliament. Now, what was the next sentence of Lord Coke? Lord Coke went on to say, every man is either noble that is a Lord of Parliament or of the Upper House, or he is under that degree. It could not, therefore, be maintained that, when Lord Coke said that nobility might be conferred by a grant of a life peerage, his meaning was other than that a person so ennobled might sit and vote in Parliament. But this was not the only instance in which Lord Coke referred to this subject; there must be a dozen passages in Lord Coke's works in which the same thing is said. There was a case in his ninth volume, in which the Lord Chancellor called to his assistance Lord Coke, the Lord Chief Baron, and the question was as to the power of the Crown to resume a grant which had been made of the Marshalsea. Among other matters, the case of peerages was discussed, and this was what Lord Coke gave as the unanimous opinion of himself and the other Judges—But as the King cannot grant a peerage for years, which would go to executors or administrators, so, without question, the King may create an Earl for life, in tail or in fee.Then there was the case of Lord Abergavenny, in the twelfth volume of his Reports, in which it was held that a writ of summons did not give a right to nobility, unless the party summoned sat under the writ—But if the King creates any Baron by letters patent under the Great Seal to him and the heirs of his body, or for life, then he is ennobled.He was perfectly ready to admit, although Lord Coke was, perhaps, the greatest authority ever known in the law, that he was liable, like other people, to err, and that propositions of his had been cavilled at and treated as mistakes. Had that been the case, however, in this respect? He should 321 satisfy their Lordships, beyond all possibility of doubt, that not only had Lord Coke's opinion not been controverted, but that it had been endorsed by all the highest legal authorities from Lord Coke downwards. Probably the next highest authority to Lord Coke was Sir Matthew Hale; and there existed in the library of Lincoln's Inn a manuscript copy of Coke, which had been in the possession of Sir Matthew Hale. He could not say that Sir Matthew Hale declared that Lord Coke was right, but there was this negative testimony to be gathered from the document—that, whereas it was covered with comments upon all that Lord Coke said upon the subject, his opinion with regard to life peerages was not doubted or questioned for a moment. Next to Sir Matthew Hale, he could not probably cite a higher authority than Lord Chief Baron Comyns, who had published a learned Digest of the Law, and under the head "Dignities," he laid it down distinctly, that a person might be created a Peer by letters patent, and that by the patent the dignity might be limited to him or to his heirs, or to the heirs male of his body, or that it might be limited only to his life. He (the Lord Chancellor) had travelled now down to about the year 1740. Early in the reign of George III. was published a book, which, if it were not quite so much in vogue among lawyers, was more read and known among non-lawyers probably than any other legal work, and which had always been considered as stating with accuracy matters of constitutional law—he alluded to the Commentaries of Sir W. Blackstone. Justice Blackstone said that the creation by right had one advantage over that by patent, for a person created by right held the dignity to him and his heirs without any words to that purpose in the writ, whereas, in letters patent, there must be words to direct the inheritance, otherwise the dignity would be conferred for life only. Before his noble and learned Friend (Lord Lyndhurst) addressed the House he (the Lord Chancellor) was prepared to have said that the next great authority upon the subject in support of the view which he had taken was Mr. Hargrave, the learned commentator upon Lord Coke. Having sent for the book, however, he found that in a modern edition of the work the editor stated that he had added some notes which he had found in manuscript among Mr. Hargrave's papers. Whence that note came he (the Lord Chancellor) was unable to say; but 322 he thought that the probability was, that the manuscript note, if ever written by Mr. Hargrave, had been rejected by him because he found that it was bad law, and it could not fairly be quoted, therefore, as Mr. Hargrave's opinion. Certainly, in Mr. Hargrave's edition of Coke upon Littleton, published in his lifetime, that very learned person never expresses a doubt as to the accuracy of Lord Coke's doctrine. There were many other authorities to which he might allude; but he would not weary their Lordships by further references. Among others, he might state that he held in his hand a book by Justice Doddridge, who was a very celebrated and able judge in the time of Charles I., and who said plainly that "this kind of dignity might be but for life, or for some other man's life." In the absence, then, of any authority to the contrary, he (the Lord Chancellor) contended that the legality of life peerages was perfectly clear. But the case did not rest there. Some forty or forty-five years ago a Committee of their Lordships' House was appointed to investigate the whole subject of the Dignity of the Peerage; it was presided over by an ancestor of the noble Lord near him (Lord Redesdale) who drew up their Reports. In those Reports Lord Redesdale canvassed pretty freely, but in the most anxious, laborious, and able manner, some of the old antiquarian doctrines which had been held on the question of peerages; and was it possible to suppose, when the noble Lord was called upon to report on the nature and dignity of that House, that a subject so evidently on the surface as that of life peerages would have escaped him if there had been any doubt with regard to it; and that he would not have pointed out the opinion which had been handed down from the time of Lord Coke, as a grave mistake? Instead of that, however, the third Report "on the Dignity of a Peer," which was dated in 1822, and which certainly proceeded from the pen of Lord Redesdale, has this passage, pp. 37, 38:—The Committee find that it has been asserted that the persons to whom dignities have been granted by the Crown, whether the names of dignities so granted were ancient or of new erection, have usually had therein rights of inheritance general or special according to the nature of the grants or titles under which such dignities have been respectively claimed, either by express terms of grant or by consequence of law; though in some instances the effects of such grants have been specially restrained to the lives of the persons to whom such grants have been made. This assertion must be understood as not extending to 323 every dignity, and particularly to the dignity of knighthood, which has never been enjoyed hereditarily; or even to the dignity of peerage, where the terms of the instrument by which it has been created has expressed the contrary.The passage is too long to quote further; but what I have already cited, as well as all which follows, shows to demonstration that Lord Redesdale considered the power to create life peerages to be a right beyond controversy. Having, then, shown this to be the view of all the learned writers to whom he had referred, confirmed by Lord Redesdale forty-five years ago, he thought that lie might be absolved from any further discussion as to the force of precedents. It was a very easy thing to treat authorities of bygone times as inadmissible; but that was not a system which would be allowed in the courts of law, and it was a peculiarly dangerous doctrine in their Lordships' House, seeing that those very documents and precedents formed the actual title-deeds, as it were, to which many of their Lordships had been indebted for their seats. Perhaps it was not surprising that these old precedents should be lightly spoken of by Peers of yesterday, but he could not understand how they could be disregarded by those noble Lords who sat there in right of long hereditary dignity. The first case was that of Guiscard d'Angle. It was said that he was a foreigner. It might be so, but he must have been in some way naturalised; at all events he was made Earl of Huntingdon. The words in the patent were totâ vitâ suâ durante. It was an error to say that the patent was afterwards cancelled. The part of the letters patent cancelled was that in which he was granted a pension to support his dignity. The pension was payable out of certain lands; but it was afterwards discovered that there was not power to grant the pension out of those lands, and another patent was issued granting it out of other lands. In the first, second, third, and fourth Parliaments of Richard II., writs of summons were issued to him in the same way as to the other Peers. But it was said that there was no evidence of his having taken his seat in the House. The simple reason was that no such evidence was in existence. It was possible that he might not have sat in Parliament; but there were no records to show who were present, and who were not; and he certainly received writs of summons regularly as long as he lived. The next case was that of Sir John Cornewayll, 324 made Baron Fanhope in the 11th of Henry VI. It had been called a creation in Parliament. To decide that point their Lordships should be aware of what the coarse of proceedings in those days was. From the terms of the patents it seemed that the Crown often did not like to grant dignities to persons who might be disagreeable to the other Peers; and therefore, of the forty-five grants of peerages between the first of Richard II. and the middle of Henry VI. more than one-half were made assensu prelatorum procerum et communitatis; eleven were for the life of the grantees, and one for the life of another person. The patent of Sir John Cornewayll bore that the creation was made with the consent of the Lords. The words were "in trium statuum ejusdem Parliamenti presentiâ," which inferred, not the assent of Parliament—not that the creation was made by an Act of Parliament, but only that that dignity was conferred in the presence of Parliament. He would advert to only one other ease, that of the Earl of Rutland, son of the Duke of York, created a Peer durante vitâ patris sui. Lord Redesdale, in his book on the "Dignity of a Peer," said that if the Duke of York had been attainted of treason, and had died in the lifetime of his son, the latter would not have inherited the dignity of his father, and would no longer have been Earl of Rutland or a Peer of the realm. Could anybody doubt, after reading that passage, that Lord Redesdale thought the patent of the earldom valid? All those persons to whom peerages had been granted for life had received writs of summons, and some of them could be proved to have taken their seats in that House. He had thus established that all writers on the subject admitted the exercise of this privilege to be an admitted right—that it was borne out by all the old authorities, and approved by Lord Redesdale. He admitted that 400 years had elapsed since there had been granted, simpliciter, a life peerage of this kind; but where was it laid down in any book of law that the Crown had no right to grant a peerage for life to any man or woman? It was admitted that such peerages had been granted to women. From the time of James I. to that of George II. peerages for life had been granted to eighteen women, and such grants were just as good authorities for the legality of the practice as if they had been bestowed on men. There was no distinction whatever between 325 the one and the other. If these were illegal, just let the House consider how many eminent men had been neglecting their duty in passing them—for Lord Clarendon granted two; Lord Shaftesbury, one; Lord Nottingham, four; Lord Macclesfield, five; and Lord Hardwicke, one. When speaking of the illegality of this patent, he might remind the House that there were analogous cases, the validity of which might be questioned on the same ground. There were, for example, innumerable instances of peerages granted to persons who were not Members of the House before, with remainder to collateral relatives. Now, if the collateral branches in such a case happened to fail, it would have been, simpliciter, a grant for life, because, technically speaking, there was no such thing as the remainder of a peerage; every remainder was a new grant; and when a peerage was granted to A. for his life, with remainder to B., it was strictly two several grants. Many of their Lordships held their seats in this way. So also a peerage was sometimes given to a man and to his issue by a particular wife, but if the wife died without issue the peerage virtually became a life peerage. But indeed he (the Lord Chancellor) need not occupy the House with such arguments as these, which were probably not at all interesting to them, for the truth was that it was stated universally in all writers upon the law, without any contradiction, from Lord Coke downwards, that the grant of a peerage for life was perfectly lawful. He thought the House and the Government had a right to complain of the two questions of legality and expediency being mixed up together as they were in one Motion for a reference to the Committee of Privileges. Disguise it as they might, what noble Lords wanted was this, to censure the Government, or at least to express a strong opinion that such a grant as this ought not to Lave been made; and it was most unfair to attempt it by such a Motion as this. If the noble and learned Lord had proposed a Resolution declaring it to be the opinion of the House that this was an improper exercise of the prerogative, such a course would have been quite legitimate. With regard to the circumstances of this particular case, it was thought to be desirable that the renewed exercise of this prerogative should in the first instance be made in a case in which the person accepting the honour would not feel that it was given in this form from an apprehension that he 326 might occasion embarrassment by leaving descendants in a state of poverty to succeed to the peerage; and the case of Lord Wensleydale appeared to be a very fitting one to be selected. As for the expediency of such an exercise of the prerogative, there were reasons which made it peculiarly desirable that high legal functionaries should have readier access to the Legislature than of late years they had had. The course of legislation in the other House of Parliament had been very much to exclude judicial functionaries from a seat in the Legislature. The Judge of the Admiralty Court, who used often to have a scat there, and whose advice on matters connected with the foreign relations of the country had been in former times very serviceable, was now excluded from the House of Commons. The Master of the Rolls was not excluded by law, but at the last general election, the present Master of the Rolls being a candidate to represent a large constituency, some people regarded it as a great scandal, and inconsistent with high judicial functions, for him to go about canvassing at an election, and that opinion, wrong or right, was one which would tend very much to exclude the Master of the Rolls from the House of Commons, of which the noble and learned Lord (Lord Lyndhurst), when he filled that office, was a distinguished ornament. Well, that made it the more desirable, that if the dignitaries of the law could not be admitted into one House of Parliament, they should be in the other. But how was that to be done, unless they could escape in some way the necessity of maintaining an hereditary peerage? He knew how it had been done in former times—by giving grants of money to them from the public purse; but surely that was not a precedent which ought to be followed. It was very invidious to speak of such, things in connection with living persons, but there were some who yet received large pensions or allowances as a compensation for sinecure offices, which were now abolished, formerly held in this way by their families. It had been said that such a precedent as this would lead to the swamping of that House by the introduction of large batches of life Peers. Now, considering that the hereditary Members of the House were some 450 or 500 in number, he did think the apprehension of any such number of peers for life being created as would materially influence its decisions, was quite chimerical. In the reign of Queen Anne, upon the occasion 327 when the House came to the decision, that it was not in the power of Her Majesty to grant a patent, of peerage to a Scotch Peer, it appeared from Burnet's History that the Court put forth their whole strength in support of the patent, which excited the zeal of those who opposed it, and who apprehended, considering the dignity and antiquity of Scotch Peers, and the poverty of the greater part of them, that the Court would always resort to this plan as a sure expedient in order to obtain a constant majority in the House of Lords. That was the apprehension entertained in the reign of Queen Anne. That apprehension had proved to be unfounded, and so would this one. The real check that would prevent the Government creating any improper quantity of Peers would not be in the absence of the power to grant them for life, but in that wholesome and ever active control which was exercised over it by public opinion, and which would make such a step as impossible as the suggestion of his noble and learned Friend for ennobling a regiment of Guards. After referring to the fact which is mentioned by Mr. Macaulay, in respect to the assistance by which Lord Somers was enabled to maintain his dignity when created Chancellor, he said that such an expedient of evading the difficulty which this patent of a life peerage sought now to escape would be at the present time, if not an unconstitutional, a most unwise and improper act, and the course here adopted was infinitely preferable. He (the Lord Chancellor) should now be disappointed to the last degree if their Lordships came to any Vote which would imply that this prerogative of the Crown to create a life, peerage, which had been made available at some former periods for disreputable and disgraceful objects, ought not to be exercised in the present age for purposes which would enhance the dignity and usefulness of their Lordships' House.
* My Lords, considering the position which I have the honour to hold, I should be shrinking from my duty if I were to refrain from expressing my sentiments upon the subject now under deliberation. Mere party questions I have been in the habit of avoiding since I have presided as a Judge in the Supreme Common Law Court. But we are now in a great constitutional crisis; an organic change is proposed, more important than any which has taken place since the Revolution of 1688; an attempt is made materially 328 to alter the composition and nature of one of the branches of the Legislature. The proposed change in this House, if effected, would, for good or for evil, be of much greater magnitude than any introduced into the other House of Parliament by the Reform Bill, which agitated and convulsed the country for two memorable years, and at one time threatened a civil war. The Revolution of 1856, however, was consummated by the Lord Chancellor privately whispering in the ear of the Blerk of the Crown, who was preparing a patent of peerage, to insert in it the words "for the term of his natural life," instead of "to him and the heirs male of his body." The Lord Chancellor having, in his closet, put the Great Seal to this patent, the deed is said to be irrevocably done. Henceforth a new class of legislators is to be introduced into the House of Lords, who, if they ever existed, have not been heard of for four hundred years; they may be multiplied to any amount, and if hereditary Peers are tolerated for a time, yet, as hereditary peerages become extinct, the majority of the House may, ere long, be composed of Peers for life, made by the Minister of the day, and dependent upon their maker. Strange to say, my noble and learned Friend who has just addressed your Lordships has admitted that in this proceeding he did not even consult his Attorney or Solicitor General. My Lords, with all due respect for my noble and learned Friend, and with high regard for the existing Government, I do say, that if they had thought this innovation expedient, they would have done better by consulting the two Houses of Parliament, and allowing an opportunity for public opinion to be expressed upon it, while remonstrance might have saved the State from many perils,—instead of suddenly calling upon us to obey their edict.
To my utter astonishment, and, I must add (from the warm friendship which indissolubly unites us), to my sincere regret, the Lord Chancellor has told your Lordships that this House has no right to complain or to inquire. My noble Friend the Lord President, who, as he has good humouredly informed us, from the scarcity of performers, acts, for this night only, the part of a law Lord, and who showed learning and ability which would have rendered him an ornament to the woolsack, took much more constitutional ground. He argued that the legality of the patent admitted of no doubt: but I understood 329 him to admit, that if there was an arguable question upon its validity, it might properly be submitted to a Committee of Privileges. The high prerogative lawyer, the Lord Chancellor, on the other hand asserts that the House has no jurisdiction, and that any individual who produces a piece of parchment with the Great Seal dangling from it, if it be called a patent of peerage, and at the same time a writ of summons under it, is absolutely entitled to be formally installed in your 'Lordships' House, although the patent, when read, may profess to make him a Peer only for his own life, or for the life of another, or for a Parliament, or for a Session, or for one night, or at the will of the Crown. This is the language of him who sits here on the woolsack, the guardian of our rights and privileges, while he watches over the just authority of the Sovereign. But, says he, "would not the writ of summons itself, without any patent, entitle the person named in it to be admitted, and to sit and vote as a Baron?" Most undoubtedly it would; and if this person were accompanied, by ninety-nine others, respectively fortified by writs of summons, and nothing more, the whole hundred must be admitted to sit and to vote, for they would conclusively prove that it was the pleasure of the Crown, in the exercise of an unquestionable prerogative, to confer upon them peerages descendible to their issue male and female—commonly called peerages in fee. The only remedy would be to impeach the Minister who counselled such an abuse of the prerogative. But where the writ is founded on a patent, and they are presented together, the writ is only ancillary to the patent; they jointly form one title; and the Crown clearly intimates that, independently of the patent, the writ shall have no operation. Therefore, if the patent is illegal and void, the writ is a nonentity. See the fraud that might be practised on the Crown, as well as the breach of your Lordships' privileges, if a sitting were allowed under the writ, the patent being void. The argument is, that the sitting would have the same effect as if there were no patent. Well, then, a peerage in fee would be created where the Crown only meant to create a peerage for life, or for one Parliament, or for a single night.
But by our free constitution there is a tribunal appointed for trying the legality of every exercise of the Royal prerogative which may be questioned. With regard 330 to the creation of a Peer, that tribunal is the House of Lords. We have no right to consider the merits or demerits of the party who claims to take his seat here, if he be a British subject free from legal disability, but we have a right to see that he shows a title to sit here ex facie good; and if he claims by patent, the validity of that patent, is necessarily submitted to our jurisdiction. We may call in the Judges as advisers, but the House decides propriovigore. Like all other deliberative Assemblies, we are necessarily vested with the power of preventing intruders from interfering with our deliberations.
My noble and learned Friend's quotations from Cruise on Dignities show that be has fallen into this mistake by confounding two things which are entirely dissimilar—deciding upon claims to an old peerage, and considering the validity of a new creation. It is quite true that with respect to the former we have no jurisdiction, except upon a reference from the Crown; and Lord Holt was quite right in refusing to pay any attention to any adjudication of this House upon a claim to the Banbury peerage without any such reference. The power of deciding on these claims the Crown, from the remotest times, has reserved to itself, with such advice as it may ask. Formerly they were referred to the Earl Marshal and the Great Hereditary Constable; and, according to modern practice, in cases of doubt and difficulty, they have been referred to this House. The Attorney General has been the chief adviser of the Crown in peerage cases, and upon his sole advice the Crown may still act respecting titles that have been dormant for centuries. Thus the claimant to the earldom of Huntingdon received a summons, without any reference to this House, on the report of Sir Vicary Gibbs, then Attorney General; and there having been an hereditary earldom, clearly entitling the true heir to a seat in this House, the determination of the Crown, manifested by issuing the summons to the claimant, could not be questioned when he came to take his seat. But the claim to sit on a new creation by patent is a very different proceeding. Here the patent must be produced and read to Verify the right of the claimant to take his place. If it confers such a dignity as by law gives a right to sit here, he must be admitted. Credit is given to this, and to every other legal tribunal, that it will decide according to law. The control provided for inferior 331 tribunals cannot be applied to the supreme authorities in the State; and should they wantonly and wickedly set law and justice at defiance, society is resolved into its original elements, and the constitution must be reconstructed.
But what caused still greater astonishment, my noble and learned Friend, to oust us of our jurisdiction, resorts to the writ which accompanies the patent, and argues that, as the writ by itself establishes an indefeasible title to be admitted, the patent cannot impair its efficacy—Surplussagium non nocet. My Lords, the writ without the patent is conclusive evidence of an intention to create a barony in fee, which is clearly within the prerogative of the Crown; but the writ with the patent as clearly shows the intention merely to give operation to the patent, and that the nominee shall have nothing beyond the dignity and privileges which the patent may lawfully confer. This is clearly shown by the ceremony when a Peer takes his seat. On bended knee he presents his patent and his writ to the Chancellor sitting on the woolsack. First the patent is read, and if that is in order, then the writ. But the writ being merely ancillary to the patent, and they jointly making out a right to the seat, if the patent be bad, he must be civilly requested to withdraw.By no means," says my noble and learned Friend; "if he be made a Peer for life, although the Crown should have no power to create such a peerage, he is entitled, at all events, to sit during his life, and you can never inquire into his right to do so, unless, after his decease, his son, or his daughter's son, should claim the barony on the ground that the patent was void, and that the nominee, by sitting under the writ, acquired an inheritable peerage for the benefit of his posterity.This doctrine, my Lords, is so contrary to all principle, and leads to such preposterous consequences, that it really will not bear to be further examined; and I think I may without presumption consider the power of inquiry, conceded to us by the Lord President of the Council, fully established. Till now no experiment has been made of sending any one to sit in this House an a new creation except by writ, which, with a sitting, constitutes a peerage in fee—or by patent granting a descendible peerage limited to a particular line of heirs—both unqestionably valid. Therefore we can bring forward no instance of a Peer rejected when, presenting himself in his robes, he claims his seat; but the Lord President, and, I presume, all except 332 the Lord Chancellor, allow that if the patent were for a term of years, or in any form allowed on all hands to be unlawful, the claimant ought to be rejected. If a precedent for the exercise of this jurisdiction is necessary, that of the Brandon peerage, mentioned in the ever-memorable speech of my noble and learned Friend who began this debate, is expressly in point. My noble and learned Friend the Lord Chancellor talked with great indignation of the Resolution of 1711, that the Crown had no power according to the articles of union, to confer a British peerage on a Scotch Peer. As a native of Scotland, I am quite willing to allow that the decision was erroneous, and that it was properly reversed in 1782. But the jurisdiction of the House on that subject without a reference from the Crown never was denied or doubted, and that decision, till reversed, was allowed to settle the law, and to control the Royal prerogative in the creation of Peers.
All we have to do, therefore, is (what the Lord President of the Council very reasonably requires of us) to show that there is ground for contending that this patent is ultra vires and illegal, as far as it declares that Sir James Parke, holding the honour of Baron Wensleydale for the term of his natural life only, "may have, hold, and possess a seat, place, and voice in Parliament, amongst other Barons as a Baron of Parliament." If such a question is fairly raised, I solemnly say as a Judge of the land, you are bound to hear and to decide it. In the Court in which I have the honour to preside, I am in the constant habit, with the concurrence of my learned brethren, of compelling inferior tribunals to hear and determine where they decline the jurisdiction which the law casts upon them. Such a refusal is a denial of justice. No longer ago than last Term we granted in the Queen's name a mandamus to His Grace the Archbishop of Canterbury to proceed in a cause of heresy, although he had changed the opinion he had first formed, when a discretion was vested in him, and had come to the conclusion that the prosecution of it was not for the good of the Church. The two Houses of Parliament are above our control, and we have no authority to grant a mandamus to your Lordships: but if the validity of this patent is fairly called in question, you are under the same obligation to hear and determine it, which we enforce upon a Court of Quarter Sessions to hear and determine 333 an appeal against the removal of a parish pauper.
Can it decently be said, my Lords, that there is not reasonable ground for questioning the legality of the patent? A noble and learned Lord who has held the office of Lord Chancellor both in Ireland and in England with universal applause, and is allowed not only to be a consummate lawyer but a most honourable and conscientious man, has solemnly declared to your Lordships that, after great deliberation, he has come to the clear opinion that the patent is absolutely illegal.
My Lords, although I have devoted many hours to the investigation of the question, my onerous judicial duties have not allowed me leisure to be able as yet satisfactorily to form a final opinion upon it. I confess that without attending to arguments on either side, I was under an impression that peerages for life were legal; but the more I investigate and deliberate, I see greater reason to doubt this opinion, and if I were forced at this moment to pronounce one way or the other, I should say that the legality cannot be established. However, to be entitled to a Committee of Privileges, all I am bound to show is, that a grave question exists which has never yet been decided, and which must be decided before the claimant can either be installed or rejected.
Now, my Lords, it is of the last importance to state definitely what this question truly is. There is no necessity for us to consider—indeed we have no jurisdiction to consider—whether the whole patent is utterly void. We cannot order the Chancellor to cancel it by virtue of his office—IIic cst qui leges regni cancellat iniquas,Et mandata pii principis æqua facit.And no determination of ours upon it, beyond the right which it gives to sit as a Peer in this House, would have any binding effect elsewhere. The question of legality, therefore, is, whether the Crown can by a patent, professing to make a commoner a Baron for life, give him a right to sit and vote as a Peer in this House?
What then, my Lords, are the means by which we are to arrive at the solution of such a question? In the absence of any Act of Parliament or written code to guide us, I say, we are to look to the lex et consuetudo Parliamenti. In considering what the Crown may do, we are to see what the Crown has done. The prerogative is 334 proved by acts of prerogative acquiesced in. Mere dicta that an act may be done by the Crown which never has been done, go for nothing; and little weight is to be attached even to acts, unless they are shown to have been done within the period when our constitution can be considered as having assumed a regular form.
As far as inquiry has yet gone, there seems reason to believe that no instance can be produced in any age, however remote, of such an exercise of prerogative by any English monarch. But if instances were produced in early reigns, before the constitution was settled on its present basis, they would be entitled to little more weight than if they had occurred in a foreign country. With respect to all the powers and privileges of the States of the realm in Parliament, Consuetudo Parliamenti est lex Parliamenti. My noble (and for this night only my learned) Friend the Lord President, complained that my noble and learned Friend who began the debate, had cited no authority to show that Desuetude is to be regarded. I will supply him with one taken from that repository of wisdom, as to public as well as private rights, the Digest of Justinian:—Quare rectissimè illud receptum est, ut leges non solum suffragio legislatoris, sed etiam tacito consensu omnium per desuetudinem abrogantur.And Donellus, one of the soundest of Commentators, adds—Tacitus consensus populi est longa consuetudo; hoc consensu, non aliter quam aperto suffragio populi, leges ipsæ scriptæ, abrogantur per desuetudinem.The doctrine of desuetude has unquestionably been acted upon in England with respect to the other branch of the Legislature. Formerly no one could be returned as a Member of the House of Commons who was not an inhabitant of the place he represented. There has been no written law to alter this usage, yet now any British subject may be returned by any constituency within the United Kingdom; and my noble and learned Friend opposite, with universal applause, represented the great county of York, where his fame was well known, but where he had neither house nor land. So by usage the rights of voting in different boroughs, formerly nearly uniform, became infinitely diversified. Not only in the Plantagenet reigns, but in the times of the Tudors, the Sovereign was in the habit of creating new constituencies and adding at pleasure to 335 the Members of the House of Commons. Nay, more; when he had once enfranchised a borough, with power to send representatives to Parliament, at his pleasure he ceased to issue a writ to that borough on summoning a new Parliament, and so by his prerogative the borough was disfranchised. The borough of Dudley, which I once had the honour to represent, is an example. It returned Members to the House of Commons in the reign of Edward I., but it was afterwards disfranchised by the Crown, and so remained for several centuries. No statute has been passed to take away that prerogative—and I well remember the storm once created in the House of Commons when a Whig law officer of the Crown gravely contended that this prerogative still remained in full vigour. During the tempestuous debates upon the Reform Bill, an objection being made that the Lords would not consent to the proposed disfranchisements and enfranchisements, the Irish Solicitor General strenuously contended that the consent neither of Lords nor of Commons was necessary, and that the object might be accomplished by the sole prerogative of the Crown. Said he, "The prerogative to enfranchise and to disfranchise once existed. It has not been taken away by statute. Desuetude is immaterial;" and he quoted the Lord President's maxim, Nullum tempus occurrit Regi. "The logical inference is, that the prerogative remains in full force. Ergo, let the King dissolve Parliament, issue writs to Manchester, Birmingham, and the boroughs which ought to be enfranchised, issue none to Old Sarum, Gatton, and such as ought to be disfranchised, and then, when Parliament meets, you will have a House of Commons reformed by the Royal prerogative as thoroughly as the heart of man can desire." I never shall forget Lord Althorp's countenance during this harangue. He threw his Solicitor General overboard as gently as possible, and the vessel righted.
It is admitted, my Lords, that for four centuries there has not been one single instance of a commoner being sent under a patent of peerage for life to sit and vote in the House of Lords. Therefore, if there were instances of such a proceeding during the convulsed reign of Richard II., or the Wars of the Roses which followed, they would be of little avail. Prerogatives of the Crown, more important, are allowed to have become obsolete by a shorter desuetude. What the Lord President said 336 about the veto of the Crown upon Bills passed by the two Houses is easily answered. This prerogative is kept alive by every Bill that passes being offered to the Sovereign for approbation, and till such approbation is expressed it cannot become law. Upon every occasion the answer may be. La Reine le veult, or La Reine s'avisera.
But, my Lords, as yet we are not driven to the effect of desuetude. Has there been a single instance established of a commoner being ennobled by patent for life only, and sitting in the House of Lords under that patent merely by the Royal authority? My Lords, I will not go over the instances seriatim which have been so luminously presented to you by my noble and learned Friend who began the debate, and have been ably reviewed by my noble and leaned Friend who spoke third. They are confined to the reigns of Richard II., Henry V., and Henry VI. In most of them the creation was in Parliament by the consent of the Peers and the Commonalty, and these are peerages by the three estates of the realm, whoso power is omnipotent. They were in the nature of Privilegia or private laws, applying to individuals, and not affecting the general law of the land. Thus was the dukedom of Cornwall created, with its very peculiar rule of devolution to the Prince of Wales, if there be one, and revesting in the Sovereign if there be not. This being contrary to the rules of the common law could only be rendered valid by authority of Parliament. The ceremony on these occasions was that, the King being placed on the Throne, and the Peers being seated on their benches, the Commons attended at the bar with their Speaker, and, without a Bill read three times and passed in either House, King, Lords, and Commons concurred in a proposed measure, and uno ictu it became law.
The creation of Guichard d'Angle, in 1 Rich. II., to be Earl of Huntingdon for his life, does not appear to have been in Parliament; but there is no evidence that he ever sate, and as he was a foreigner, for whom it was merely intended to provide by estates belonging to the earldom, the probability is that he never claimed to sit, and that there was no opportunity of questioning his right to sit.
The creation of Sir John Cornewall Baron Faunhope and Baron Milbroke, in 10 and 20 IIen. VI., was in Parliament; but 337 the assent of the Lords only is mentioned in the Parliament Roll,—probably by an accidental omission; and, at any rate, this precedent can be entitled to no weight: from the patents containing no such words as "for life," and declaring that he was "to enjoy the dignity, with all the privileges, &c. possessed by any other Baron of the realm," there can be little doubt that the intention was to make the dignity hereditary.
In the other instances where a peerage for life was created, it will be found that the Peer had in him previously another hereditary peerage, by virtue of which he was clearly entitled to sit and vote. Thus Richard De Vere, created Marquis of Dublin, 9 Rich. II., was previously Earl of Oxford, a peerage which had been in his family since the Conquest. So John of Gaunt, created Duke of Aquitaine, 13 Rich. II., was previously Duke of Lancaster, to him and his heirs male. Again, although the dukedom of Exeter was conferred in 4 Hen. V. on the King's uncle for life, he was previously Earl of Dorset in tail male. My noble and learned Friend who spoke third in the debate has completely disposed of the earldom of Albemarle, created for life in 1417, by showing that the grantee was previously Earl of Warwick as an hereditary Peer, and that he continued to be designated Earl of Warwick as long as he lived.
The patents in 35 Hen. VIII. creating an earldom of Thomond for life, with a remainder of the same earldom for life, are exceedingly strong to show that, according to the doctrine then prevailing, it was considered that by virtue of a peerage for life the patentee could not sit and vote in the House of Lords; for in the very same patents Maurice O'Brien, the first taker of the earldom for life, is created Baron Inchiquin, to him and his heirs male; and Conan O'Brien, the remainder man, is created Baron Ibraking, to him and his heirs male. The reasons why the principality of Thomond was then converted into an earldom, to be held for life, have already been fully explained.
We have now done with the alleged instances of Peers sitting and voting in the House of Lords by virtue of a Royal patent, professing to create a peerage for life only. The result seems to be that as yet no instance has been satisfactorily established at any time, and there is no pretended instance within 400 years.
Come we now, my Lords, to peerages 338 for life conferred on women, from the Duchess of Norfolk, in the reign of Richard II., to Madame Walmoden, Countess of Yarmouth, in the reign of George II.,—fortunately the last of her order. I confidently contend before your Lordships, that these precedents have no application to the question now to be decided. We are not now considering whether the Kings of England had power to grant titles and precedence for life to mistresses or to modest women, or to ennoble them for life, so as to give them the privilege of the peerage which may be enjoyed by the female sex. Strong reasons may be urged against such a power, and it has been judicially denied, as I shall show you presently; but if it exists, it affords no proof of a power to send a commoner to sit and vote in the House of Lords as a Baron for life. The right to sit in Parliament does not necessarily follow from the creation of a Barony, and Baron Wensleydale's patent in consequence contains an express grant of that right. But these female patents for life of course contain no such grant, and are no evidence of the exercise of the disputed prerogative. These ladies never pretending to sit in this House, no opportunity could arise for questioning their nobility; fortunately none of them ever were charged with treason or felony, so as to raise the question whether they should be tried by the House of Lords, or by a jury of twelve commoners; and I doubt whether they walked as peeresses at a coronation—so it may be doubtful whether the heralds would allow them greater precedence than to the less fortunate Alice Pierce or Jane Shore.
The only scrap to be found in our judicial annals respecting the rights of a Peeress for life is in the Countess of Rivers's case, which occurred in the year 1650. Your Lordships are aware that although the House of Lords was for a time voted useless and dangerous (a Vote which life Peers may soon cause to be renewed), peerages never were abolished in England, as they have several times been in France. Under Cromwell, the privileges of peerage were allowed, and the Protector himself established a House of Lords, and created Peers. The Countess Rivers, being arrested for debt, pleaded her privilege before my predecessor, Chief Justice Roll, one of the most learned and honourable judges who ever sat in Westminster Hall. She was brought into court, and she prayed that she might be discharged out 339 of custody. It was argued against her that "she has no privilege against the common law, although she may have her privilege in point of honour in the Marshal's Court and Heralds' Office." ROLL, C. J.: "It is questionable whether a countess made so by patent for her life be privileged or no: therefore let her remain in custody of the Sheriff till Saturday, and then move it again." Accordingly it was again moved, "And held by Roll, C. J., that the privilege is not allowable, for she never had reference to the Parliament, or to any other public service. Jermain, Nicholas, and Ask, Justices, agreed with Roll in all." I ought to add that, although this seems a final judgment, the Report by Styles adds, "Adjourned;" and I can find no other trace of the cause. But, my Lords, suppose it had been decided that the Countess Rivers was entitled to be discharged from arrest, what would this have proved as to the right of a Peer for life to sit and vote in the House of Lords? This right is not an invariable and necessary incident of peerage. The Scotch and Irish Peers, though privileged from arrest, are not entitled to sit in the House of Lords. As I have before said, unless granted to a Baron, he would not possess it. James I., by patent, created his countryman, Sir James Hay, "Lord Hay, with precedence next to the Barons of England, but not to enjoy any place or voice in Parliament." So Charles I. created De Reede, the Ambassador from the States General, an English Baron, by the title of "Baron Reede, to him and his heirs male, without voice in Parliament." These were unparliamentary Barons, and Baron Wensleydale may be the same. The Crown is the fountain of honour, and may grant titles and precedence at pleasure: but the Crown cannot interfere with the constitution of the two Houses of the Legislature, by whom the laws are made, except according to the lex et consuetudo Parliamenti. My noble and learned Friend asks very triumphantly, "Shall it be supposed that Lord Clarendon, Lord Shaftesbury, Lord Nottingham, Lord Macclesfield, and Lord Hardwicke acted illegally in putting the Great Seal to patents of peerage for life to Royal mistresses?" There is no occasion for us, in this debate, to decide either on the legality or morality of these patents. They in no respect interfered with the constitution of either House of Parliament, and they do not profess to grant anything beyond rank, which 340 the Sovereign may distribute at pleasure. But the patent to which my noble and learned Friend has put the Great Seal does interfere materially with the constitution of Parliament, and by express words gives to a Baron for life the privilege of sitting and voting in this House—for which there is no precedent—at least for 400 years. I do not as yet pronounce my noble and learned Friend's patent to be illegal, but it may turn out to be liable to that charge, although those of his distinguished predecessors are free from illegality. My noble and learned Friend says that he is on his trial, and I that, if his patent is bad, he ought to be impeached. Not so, my Lords. I am sure that in this and every passage of his spotless life he has been actuated by the purest motives and the best intentions, and the haste and inconsiderateness with which this act appears to have been done would rebut the charge of the scientèr I which would be necessary to constitute an impeachable offence.
Stress has likewise been placed on peerages granted for life with a remainder different from the heir-at-law of the grantee,—as to a younger son and his heirs male, or to the eldest son of a second marriage and his heirs male. Under such patents the Earl of Wilton, Earl Vane, and other Peers now present, actually sit; and there can be no doubt as to then legality. These are hereditary peerages in their inception, with a defined line of devolution according to the rules of the common law. The first taker of the new peerage has invariably been an hereditary Peer, and there will be some difficulty in showing that Hugh, Duke of Northumberland sat here as a Peer for life because the Barony of Louvaine was granted to him for life, with remainder to his second son in tail male.
What discoveries may be made when we get into the Committee of Privileges, I know not, and till more satisfactory investigation takes place, I suspend my judgment; but I may say that hitherto no usage has been proved which justifies or lays any foundation for the claim.
And let me again observe by way of caution, that although instances should be brought forward, they are by no means to be considered conclusive. There were repeated instances in different reigns of the Kings of England having accepted the surrender of a peerage, and such was the clear law as well as usage in Scotland. 341 But when the question was brought before this House in the reign of Charles II., notwithstanding all these instances, and notwithstanding all the efforts of the Lord Chancellor and of the Government to support the prerogative claimed, your Lordships' ancestors, seeing that this was inconsistent with the principle of hereditary peerage,—putting it in the power of a worthless representative of an ancient and meritorious family to extinguish its well-won honours,—resolved by a considerable majority in the great Purbeck case that the surrender was void, and that the Crown had no right to re-grant the Peerage. I can only hope that if your Lordships, their descendants, should be of opinion that patents of peerage for life, professing to grant a right to sit in this House, are contrary to law, you will boldly follow the example of your ancestors,—even if instances of such peerages should be discovered.
My Lords, I find one instance—I confess only one—of the creation of a Peer during pleasure. In 19 Edward IV. an Earl of March was created, "to hold to him and his heirs during the King's pleasure." No one, I presume, will now assert that such an exercise of the Royal prerogative ought to be held valid,—although, indeed, my noble and learned Friend the Lord Chancellor asserts that we should be bound to admit the "Peer at will" to sit and vote among us, and that the House could only debate his right to do so when he had been summoned to another state of existence.
This creation of Peers at will did not grow into a practice. But an instance of acts of the Sovereign with respect to this House which had grown into a practice having, on examination, been found and declared to be illegal, is afforded by the writs of summons sent to the husbands of Peeresses in their own right, authorising them to sit in this House for the life of their wives. I will give a few out of many examples. In the 27 Edward I., Ralph Monthermer, who had married the Dowager Countess of Gloucester, was summoned to Parliament as Earl of Gloucester, and to all succeeding Parliaments during her life. In 24 Henry VI., Baroness Dacre, in her own right, having married Sir Richard Fenys, he was summoned and sat as a Baron during her life. So in the same reign a commoner was allowed to hold the dignity of Earl of Salisbury, as tenant by the courtesy, in right of his wife Alicia, 342 daughter and heir of the preceding Earl of Salisbury, by whom he had issue. The only doubt then entertained was, whether the husband was entitled to the dignity as tenant by the courtesy, without having had issue by the wife. In the reign of Henry VIII. it was decided in the case of the Talboys peerage, that "none other should henceforth use the title of his wife's dignity but such as by the courtesy of England, had also a right to her possessions for term of his life." But afterwards, in the reigns of Elizabeth and James I., it was settled that the Crown could not summon the husband in right of his wife, whether he had issue by her or not, although it was found that "baronies in the like right had been conferred in several families, and in the particular barony of Dacres three several precedents."
Well, then, in considering the doctrine that the Crown has a right to act, with respect to the peerage, in any way sanctioned by practice at any particular period, let me remind your Lordships of the practice, which undoubtedly existed for successive reigns,. of summoning a Baron for a Parliament or for a Session only—and sometimes, when he had been summoned all his life, omitting to summon his heir. Hallam, in his Middle Ages, says:—No less than ninety-eight laymen were summoned once only to Parliament, none of their names occurring afterwards; and fifty others, two, three, or four times. Some were constantly summoned during their lives, none of whose posterity ever attained that honour.The same accurate author, in his Constitutional History, adds:—The number of temporal Lords summoned by writ to the Parliaments of the House of Plantagenet was exceedingly various; nor was anything more common in the fourteenth century than to omit those who had previously sat in person, and, still more, their descendants.But from these precedents could it now be contended that the Crown could capriciously withhold a summons from the representative of an hereditary peerage?
Poverty in the claimant was formerly considered a sufficient reason for withholding the summons. Long before lawyers were made Peers, poverty appears to have been an evil which visited the peerage. A Duke of Bedford, in the reign of Edward IV., was degraded from his rank by Act of Parliament on account of his poverty; and with regard to inferior dignities, the Crown was in the habit, proprio vigore, of withholding the summons on 343 the ground of poverty. Sir Harris Nicolas, the great advocate for life peerages, has the following passage in his pamphlet, so frequently referred to:—And it would seem, from, the opinion of the Judges in the reign of Elizabeth, on a claim to the barony of Abergavenny, as well as from the Sovereign not summoning some Lords to Parliament when they alienated their patrimony, that the want of means to support the honour induced the Crown to withhold writs of summons,—a precedent which could not in this age be followed.Again, my Lords, nothing can be more certain than that baronies by tenure existed, and might be created by the Crown; but, I believe, my noble and learned Friend opposite (Lord Brougham) can inform your Lordships, that when arguing at the bar a claim to the barony of Berkeley by tenure, Lord Eldon intimated a clear opinion that baronies by tenure exist no longer, and could not now be created. Let it ever be recollected that we are speaking of baronies giving a right to sit in the House of Lords. Hallam, that great master of constitutional learning, says that—A purchaser of Arundel Castle certainly would not be entitled to sit in the House of Lords. But it might be a speculative question whether such a purchaser could not become a real, though unparliamentary Baron, and entitled as such to a trial by the Peers.So it may be a speculative question whether Lord Wensleydale may not, as an unparliamentary Baron, be entitled to be tried by the Peers if a charge of treason or felony should be brought against him, although it should have been held that he is not entitled to sit and vote as a Baron in this House.
I will only mention one more instance of a change without any Act of Parliament in the usages and law by which this House is governed. Lord Hale, the greatest of legal antiquaries, expressly says that down to the reign of Edward III. members of the King's Ordinary Council, consisting of the Judges and other functionaries under the Crown, sat in the Great Council, and in all the judicial business which came before the House not only advised the House, but, of their own authority, spoke and voted in the decision of causes; and he rather intimates an opinion that your Lordships have usurped the exclusive appellate jurisdiction which you now exercise. But if any of the Judges in attendance upon your Lordships, although as learned and venerable as Lord Wensleydale, were to claim voice and 344 vote in the decision of an appeal or writ of error, I do not think that they would succeed by all the precedents which they might cite before the reign of Edward III.—a contrary usage having prevailed for centuries.
The result is, my Lords, that the claim to send a Peer for life to vote in this House cannot possibly be supported by usage, and it must rest entirely upon dicta to be found in the books. These dicta, my Lords, unvouched by decisions, and never acted upon, I must say are anything but conclusive, however distinguished may be the names connected with them. The statement by text-writers of points of law of daily occurrence, and settled by judicial decision, are entitled to the highest consideration, and we ought to be governed by them: but when we certainly know that there never has been any decision on the subject, these dicta are mere matter of opinion; and I must say that we now not only have the same, but better means of forming an opinion than a writer in the reign of James I., for the history of the peerage has in recent times been much more accurately investigated.
My noble and learned Friend on the woolsack, in his able speech, seemed very shy of touching upon usage, and having peremptorily denied our right to inquire at all, long contented himself with a parade of his dicta. He began, of course, with Lord Coke, and did me the high honour to read a passage from my Lives of the Chief Justices, in which I pronounce a panegyric upon the learning and ability of that great Judge. I do not wish to retract anything I have said in his praise. "For a profound knowledge of the common law of England he stands unrivalled." [Here the Earl of Derby crossed the House, and placed in the hand of the noble and learned Lord the first volume of the Lives of the Chief Justices, and requested him to read on from the place where the Lord Chancellor had stopped.] My Lords, glancing my eye over this passage, I must say that my noble and learned Friend would have shown more candour if he had read it, or if he had refrained from reading a garbled extract. Here is the qualification on my praise:—Notwithstanding the value of his Reports, no reporter could venture to imitate him. He represents a great many questions to be "resolved" which were quite irrelevant, or never arose at all in the cause; and these he disposes of according to his own fancy. Therefore he is often rather a codifier or legislator than a reporter; and this mode of settling or reforming the law would not now 345 be endured, even if another lawyer of his learning and authority should arise.My Lords, with, regard to peerage law, Coke never has been considered a high authority, and, as was observed by Lord Plunket, in the Waterford case, "the strange reasons which he sometimes gives show the unsoundness of his opinions." I will not stop to inquire whether in the passages relied upon he is speaking of a mere dignity for life, irrespective of Parliamentary rights. I will assume his opinion to be that the Crown might create a Peer for life with a right to sit in this House, and I will examine his reasoning. The only limit he puts upon the power of the Crown in creating a peerage is that there shall not be a danger of the peerage coming into the hands of executors or administrators. Therefore "the King may not create a man noble for years, because then it might go to executors or adminstrators." But this would sanction peerages pur autre vie (or for the life of another), which I have not yet heard defended; it would sanction peerages for a term of years, adding the words "if the grantee so long live;" it would sanction peerages at will, such as was granted to the Earl of March in the reign of Edward IV.; it would sanction peerages for a single night; for none of these could ever go to executors or administrators. My Lords, this last class of peerages would be exceedingly convenient on a critical division, when the pairing off is not satisfactory, and the book of proxies looks alarming, for the Minister would only have to march into the House before five o'clock the requisite number of Peers for a night to secure his majority, and his object would be accomplished without any permanent addition to the peerage.
The dictum is repeated in nearly the sume words by subsequent writers without hesitation, but I believe without examination, merely upon the authority of Lord Coke; but as that opinion had not been acted upon, as far as sitting in Parliament is concerned, for 150 years before Lord Coke's time, and has not been acted upon for 250 years since his time, the opinion gains little additional authority by any repetition. It certainly had created a pretty general impression that a peerage for life, with all the privileges of the peerage, might lawfully be created. My noble Friend the Lord President did me the honour to read from Hansard a few words which I am supposed to have uttered in debate, without any opportunity for consideration, on a sudden proposal irregularly 346 thrown out when there was no Motion before the House, that official peerages might be attached by the Queen to the chiefs of the different Courts in Westminster Hall. I make no doubt, my Lords, that, denying the power to grant a peerage to be held conditionally on the tenure of an office, I did then observe that the Crown might make a Peer for life. But this dictum was really hardly worth quoting as the accuracy of Lord Coke's opinion I never till now have been called upon to consider. In the same manner, any lawyer might have said offhand in former times that the Crown might accept the surrender of a peerage, or summon the husband of a Peeress to sit in her right.
But my noble and learned Friend the Lord Chancellor placed great reliance on what might be a much higher authority—Mr. Justice Doddridge. He is not quite accurate, however, in representing the book from which he quotes as the composition of that learned Judge. It is entitled the "Magazine of Honour, collected by Master Bird. Revised and enlarged by Sir John Doddridge, Judge of the King's Bench." The book certainly contains the following passage, treating of Barons by patent:—This kind of dignity of Baron shall be of such countenance in descent or otherwise as shall be limited in the Habendum in such letters patent contained, for it may be but for the life of him to whom it is given, or for term de autre vie of some other man's life as some hold opinion in 9 Hen. VI. 29, for cujus est dare ejus est disponere.But this reasoning is wholly untenable. It proceeds upon the maxim "omne majus continet in se minus,"—from which the inference is drawn, that as the Crown can grant a peerage to the grantee and all the heirs of his body, the grant may be for any less estate—not only for the life of the grantee, but pur autre vie, for years, or at pleasure. Strange, indeed, would it be, my Lords, if there were a peerage determinable on the death of another person; for that person might die while the Peer is addressing the House, and then the Peer must instantly be turned out as a stranger and an interloper. Danby, C. J., according to the Year Book of 32 Hen. VI., 23. does talk as if such a peerage might exist; but no such peerage ever has existed, and I boldly say that no such peerage can be lawfully created with the right of sitting in Parliament annexed to it. The instance of Richard II. creating Edward, the eldest son of his uncle Edmund, Duke of York, Earl of Rutland during the life of the said 347 Duke, his father, has no application, as on the death of his father he was to succeed to an hereditary peerage, and this was no more than the practice, still existing, of calling up the eldest son of a Peer to the House of Lords in his father's lifetime. That the Crown could not grant the honorary dignity of a Baron to be so held, or to be held on any other tenure, howsoever fantastical or ludicrous, I am not prepared to say; but the right of sending a person into one of the Houses of Parliament to make laws for the people is a much graver matter, and it can only be lawfully exercised according to established usage. Would there be any absurdity in supposing that, by the original constitution of England, the monarchy being hereditary, one House of Parliament should be composed of hereditary Members, to be appointed by the Crown, but that the Crown should only have the power of sending Members there to sit with a descendible dignity? Once more, my Lords, let me ask, how are we to know what the power is, or what limits can be set to it, except by considering how it has been exercised in a long succession of ages?
What then becomes of the boasted dicta relied upon to legalise this innovation?
But are there no dicta deserving attention on the other side? In the great Purbeck case, Sir William Jones, to prove that the King might take the surrender of a peerage, argued that peerages for life might be granted. But Lord Shaftesbury, in an admirable judgment, showing that, however defective he might be in legal technicalities, he was exceedingly well versed in peerage law, said, "It is pressed as a known law that honours are grantable for lives,—a point of greater consequence than the thing in debate. It is not a fair way of arguing, nor to be allowed of." This, I think, was a pretty clear intimation that in the reign of Charles II. this point was not settled, although Lord Coke's writings were then published. Lord Shaftesbury having denied the power contended for, it is remarkable that the great Lord. Nottingham, then Chancellor, who took part in the debate, did not express any difference of opinion from Lord Shaftesbury, although he supported the power of surrendering peerages, and his argument would have been materially strengthened if the power of creating peerages for life with a right to sit in Parliament could have been established. Sir William Jones himself 348 seems to have alluded only to title and precedency—not to a right of sitting in Parliament: for he argues, "an honour may be created for life, and then none of the posterity or blood of the Peer is thereby ennobled."
Lord Coke's authority, so much relied upon, has been questioned and denied by his own very learned commentators, Hargrave and Butler. My noble and learned Friend the Lord Chancellor has said that he cannot find any note by them upon this subject. I can only say that with my own hand I copied the following note from the nineteenth edition of Coke upon Littleton, stated in the Preface to be "Printed from the last edition by Mr. Butler, with the corrections and insertions in Mr. Hargrave's notes from his own copy." Whether it is by Hargrave or Butler is wholly immaterial; they were equally learned—and perhaps the two most learned lawyers of the last generation:—Notwithstanding Lord Coke's position here of the King's power of making an Earl for life, I doubt whether the legality of such creations can be supported. I am rather impressed that the quality of being hereditary is of the essence of our peerage, and that of attributing to the King the prerogative of creating peers for life only, is to invest the Crown with a power of gradually destroying the Peerage in its subsisting state, which I believe is, de facto, such as not to furnish an instance of a peer sitting as a Lord of Parliament under a life interest. The point seems to me one of great importance. I am not aware that it ever was judicially determined.To be entitled to the Committee we ask, all that we have at present to show is, that a grave question respecting the privileges of this House has arisen, which never has been decided, and which a Committee of Privileges is the proper tribunal to decide. For this purpose, surely it ought to be enough to quote the authority of Hallam, who, in his Middle Ages, states it to be "a matter in controversy, whether inheritable nobility is necessary to the definition of peerage, or to its incidental privileges." That serious doubts have subsisted upon the subject among those most competent to form an opinion, is shown by the very circumstance that, although upon various occasions the exercise of this disputed power of the Crown would have been very convenient, it never has been exercised. If Lord Somers thought he could have sat in the House of Lords as a Peer for life, he would not have so long occupied the woolsack as "Speaker of the House" without any right to speak. Lord Liverpool's doubts 349 prevented him from making the experiment while he remained minister. Sir Harris Nicolas in vain addressed his Letter to the Duke of Wellington, pressing for the creation of life Peers. In the crisis of the Reform Bill, when it was thought to be the less of two evils to make a large addition to the numbers of this House for the purpose of carrying a measure of vital importance, Lord Grey and Lord Brougham never supposed that they could resort to the creation of Peers for life, although this expedient would greatly have facilitated the coup d'état which they had in contemplation.
Following the example of those who have preceded me in the debate, I will now consider (but very briefly) how far the present exercise of the power to create life Peers, suppose it in point of strict law to exist, is constitutional and expedient. And I must say, my Lords, that the course which has been adopted—of suddenly and secretly attempting to revive an obsolete prerogative of the Crown for the purpose of materially altering the constitution of one of the branches of the Legislature—appears to me to be highly unconstitutional. If a declaratory act was not proposed, surely there might have been a sentence in the Queen's Speech, or a message from Her Majesty, intimating that "Her Majesty had been advised that the making of Peers for life, to sit and vote in the House of Lords, which had fallen into desuetude since the reign of Her Royal predecessor King Henry VI., and which had been before exercised with the assent of Parliament, might now be revived for promoting the object ever near Her heart, the better administration of justice." This, it might be said, would be for the Sovereign to consult Parliament as to the exercise of Her prerogative. But, my Lords, it would be easy to show that in the times of the Plantagenets it was no uncommon occurrence for the King, who was then nearly absolute, freely to consult Parliament as to the exercise of undoubted prerogatives. That Parliament should interfere in selecting the objects on whom the Royal favour is to be bestowed, either in the grant of offices or dignities, would be highly improper; but Parliament might surely have been permitted to express an opinion upon a great organic change in the practical working of the constitution, even if this might legally be effected by the sole power of the Crown.
350 As to the expediency of the measure, it really depends upon this—whether we ought to continue to have a second chamber of Parliament, not elective. Many plausible arguments may be brought forward both against an hereditary peerage and an hereditary monarchy. Wisdom and virtue are not descendible in any family; and hereditary power, either to legislate or to govern, may be considered inconsistent with the maxim that you ought always to have "the right man in the right place." I therefore listen to those who theoretically argue in favour of a pure republic with perfect respect and forbearance. My own belief is, that the liberty as well as the tranquillity of a nation is best preserved under a constitutional monarchy, and that an hereditary aristocracy is necessary to such a monarchy, as well as a representative assembly elected by the people,—the elective franchise being made as extensive as possible. Under such a constitution, I am confident that enlightened public opinion has more sway in England than in the United States of America, where the President, the Senate, the House of Representatives, and the Judges, are all elective. Having served a great many years in both Houses of Parliament, I have had the opportunity of observing the advantage of one of them being without local constituents, as well as being independent of the Crown. This House (although sometimes too slowly) has always followed public opinion, and may be considered the representatives of the nation. Within a few years you have agreed to the repeal of the Test Act, to Catholic Emancipation, to Parliamentary and Municipal Reform, to the Commutation of Tithes, to the Abolition of Slavery in the Colonies, to the establishment of Free Trade, and to the repeal of the Navigation. Laws. Since I have had the honour of a seat in this House, there are only two important questions on which you have differed from the other House, and on both, I venture to say that public opinion was with you—the admission of Jews to Parliament, and the marriage between a man and the sister of his deceased wife. On the first of these I have always voted in the minority, and have much regretted the result; but I must confess, that if the nation had then been polled, I fear we should have been in a minority, although I trust that the prejudice against this class of our fellow subjects has recently been much mitigated, and that, under the auspices of my noble 351 and learned Friend at the table, their emancipation may be speedily completed. On the other question, I voted most cordially with the majority—who rejected the Bill—all the women in the United Kingdom, almost all the inhabitants of Scotland and Ireland, and, I believe, a large proportion of Englishmen, applauding our decision. Should that Bill ever again be presented to this House, I hope, for your credit, that it will meet with a similar fate.
On some questions you have been in advance of the other House; and I would appeal to my noble and learned Friend opposite (Lord Brougham), whether several important Bills which passed this House almost unanimously for the improvement of our juridical system—such as the establishment of a General Register of Deeds, and enacting a Law of Marriage for Scotland, where there is none—have not been lost elsewhere by the dread of giving offence to powerful classes of constituents. My Lords, I think it would be well to view the imperfections of this House with some tenderness, to recollect what it has done for public liberty, and not to endanger its existence till you are sure that a better can be found to supply its place.
My Lords, all who concur in these sentiments ought to condemn this measure. The power now claimed of making Peers for life cannot be confined to lawyers with a view to the decision of appeals. Before long it must necessarily be abused by unscrupulous ministers; and even what might be considered the legitimate use of it must inevitably put an end to the non-elective branch of the Legislature. If persons of merit from all classes, military, naval, mercantile, literary, and scientific, who cannot conveniently obtain seats in the other House, are to be introduced here, the selection of them will not, and I think ought not, to be left to the Minister of the day; the public would loudly and justly call out for another organic change by which the Members of the House of Lords might be elected by the people. How long would the Monarchy survive? It has been said, that we who deny this power are attacking the Prerogative and weakening the Throne. Let those who hold such language recollect the saying of Lord Bacon, "To depress the nobility may make a King more absolute, but less safe."
My Lords, I am quite unable to understand this sudden necessity for the multiplication of law Lords, which my noble 352 Friend the Lord-President relied upon as the justification of his measure. Things went on pretty well for several years after the Revolution of 1689, without a single law Lord in the House; and Lord Somers was the only one for the rest of the reign of William III. Lord Chancellor Cowper and Lord Chancellor Harcourt were added in the reign of Queen Anne. From the accession of the House of Hanover it was common, although by no means a universal rule, to create the Chief Justice of the King's Bench, as well as the Chancellor, a Peer. But till very recent times there rarely were more than two law Lords in the House at the same time; and, I believe, never more than two sat together on judicial business. The appeals were satisfactorily disposed of for years by a succession of great men, such as Lord Hardwicke, Lord Mansfield, Lord Thurlow, and Lord Eldon, sitting alone. My Lords, I myself constantly attended the hearing of appeals and writs of error in this House for nine years, Lord Lyndhurst and Lord Cottenham being alternately Chancellor, and Lord Brougham, the ex-Chancellor, ably assisting. I take a very humble portion of the merit to myself; but I will venture to say that the decisions of this House during those nine years were received with respect in England, in Scotland, and in Ireland, and there was no call for the creation of Peers for life. Since I have had the honour to be a common law Judge, my first duty has been in Westminster Hall, and I have only rarely been able to take a part in the judicial business of this House; but considering the learning and experience of those who do, I am at a loss to understand what can be the foundation for the clamour which, if the Government does not originate, it seems to encourage. My noble and learned Friend the Lord Chancellor does make a mortifying confession, if the measure be his.
But, my Lords, if there be a necessity for remodelling the appeal department of this House, I solemnly warn you against the scheme proposed for that purpose. In addition to ex-Chancellors, we are told that there ought to be legal Peers for life—seven for England, the Lord Chancellor, the chiefs of the three superior courts in Westminster Hall, the two Lords Justices, and the Master of the Rolls; two for Scotland, the Lord President and the Lord Justice Clerk; and of course four for Ireland, the Lord Chancellor and the three chiefs of the superior courts—waking a 353 baker's dozen. The first objection is, that each and all of these functionaries have work of their own in their own courts, which must engross the greatest part of their time and attention. But if they were all in conclave together, they would make the worst court of appeal that ever sat. No court of appeal should consist of more than three or four members. A greater number, by dividing responsibility, lessens anxiety and devotedness, and even raises a danger of precipitation, one starting off and all the rest gregariously following him. Our English appeal system in the Exchequer Chamber upon the whole works well, but I believe that it would work still better if four only, two from each Court reviewing the decisions of the third Court, with a competent chief, were to attend; but your thirteen, constituting this imperial tribunal, would make confusion worse confounded. The law would be unsettled, and even the victorious party would go away dissatisfied.
My Lords, I should indeed be sorry to see you surrender your appellate jurisdiction. I still approve of a Bill which I laid upon your table in the year 1842 for transferring to this House the appeals now heard before the Judicial Committee, having one supreme court of appeal in the last resort constantly sitting except in the long vacation. This, I believe, might be easily effected without any organic change in the constitution, and the chief novelty would be to summon the Equity Judges when necessary, which, as they are Privy Councillors, the lex et consuetudo Parliamenti would sanction.
My Lords, I feel it my duty likewise to warn you of the inconvenience which may arise to yourselves from the invasion of the horde of legal Peers with which you are threatened. From their morning wranglings you may secure yourselves by absence, but it must be remembered that—unlike the King's ordinary Council of old, who were confined to taking a part in forensic business—they will be entitled to bring forward whatever Bills or Motions they please, and to take a part in debate on all subjects, political, ecclesiastical, military, or commercial. Now, my Lords, I have a great respect for my own profession, to which I owe so much; but there may be too much of a good thing. I remember my noble Friend the noble Earl, the head of the late Government, when myself and one other law Lord had got into a little contest with him about a Bill to regulate 354 the Kirk of Scotland, exclaiming with some warmth, "The House must take care not to be lawyer-ridden." But what will become of him when he has got fifteen English, Scotch, and Irish law Lords down upon him at once? Lord Coke speaks very indignantly of the Parliamentum Indoctum, which met, I think, in the reign of Henry VI., all lawyers being excluded by directions from the King to the Sheriff in the election writs. He says truly that "there was never a good law made thereat." But, my Lords, I am filled with apprehension at the prospect of a Parliamentum doctissimum or perdoctum. The number of lawyers in the House of Commons has been considerably increased since I left that Assembly, and I do not find that the progress of law reform there has been by any means proportionably accelerated.
There is only one other topic for which I beg a moment's indulgence. If the proposed life-peerage system is established, henceforth no lawyer, however eminent he may have been as an advocate, whatever services he may have rendered to the state in the House of Commons, whatever fame or fortune he may have acquired, can aspire to an hereditary peerage. or to become the founder of a family. To make a distinction between the Chancellor and the Chief Justice—between one Chancellor or Chief Justice and another, when coming into this House, as to the tenure of their honours, would be intolerable. All must be under the same rule—"no son of theirs succeeding." If this rule were to have a retrospective operation, about one-third of the present nobility of England, including Earls, Marquesses, and Dukes, would be degraded. But, my Lords, what I regard more is, that the change is an injustice to the middling and humbler ranks of society, to whom a prospect has hitherto been held out of mixing with the ancient nobility through the profession of the law. My Lords, by the favour of the Crown, for which I am most grateful, I am beyond any interest in this question for my own family; but I should have thought that I acted a sordid part if I had been contented with joining the band to whom hereditary honours are secured, delighting in the monopoly we are to enjoy,—and if I had assisted to kick down the ladder by which I myself have risen.
My Lords, I have now only to thank you for the indulgent hearing with which 355 you have favoured me. The part I have taken in this affair has been painful to me, and it can be imputed to nothing but a sense of duty. A friendship which never can know abatement has long subsisted between me and the Right Honourable Baron in whose person this experiment has been made, and it would have given me unmixed pleasure to have seen him regularly introduced into this House, to which I doubt not he would be found an ornament. I have a sincere desire to support the existing Government in all their measures as far as I conscientiously can, believing that their stability at the present moment is essential to the public welfare. Above all, I desire on all occasions to show my good will to the Lord Chancellor, my ancient colleague as a law officer of the Crown, who is not, I suspect, the real father of this measure, but who has boldly stood forward to defend it as his adopted child. Although I cannot be blind to what I must call the infatuation which has induced him needlessly to deny the jurisdiction of this House to judge of its vital privileges, I consider him one of the most honourable and amiable of men. Still magis amica veritas. I see great reason for believing that the measure is illegal; I am sure that it is unconstitutional, unnecessary, and inexpedient; and strongly entertaining this opinion of it, I should be unworthy of a seat in this House if, at any sacrifice of my personal feelings, I did not most resolutely oppose it.
§ EARL GREY
My Lords, I do not mean to say anything upon the question of the legality or the illegality of the patent granted to Lord Wensleydale. It would be unpardonable in me to do so after the conclusive argument of my noble and learned Friend on the woolsack; and, I am the less tempted to make such an attempt, because, if I rightly understood the noble and learned Lord who spoke last, he has felt so strongly the force of that able argument that he has not ventured to lay before your Lordships, distinctly and clearly, his opinion, in opposition to that of the Lord Chancellor. The utmost he has ventured to say is, that the question is open to doubt, that it is one for further consideration, and that the legality of the patent has not been established. In that he only followed the example of the noble and learned Lord who introduced the subject in a speech of such extreme ability and interest. That noble and learned Lord most carefully avoided the position that the patent 356 of Lord Wensleydale is illegal; nay, he even wont further, for, by implication at least, he seemed to show that the patent was legal. I will confine my observations, therefore, to these two questions—first, the real nature of the measure which the Government have adopted; and, next, the consequences which might follow if we agree to the Motion before us. With regard to the first, I heard with extreme surprise from the noble and learned Lord Chief Justice, that this was a measure for effecting an organic change in the constitution of this House more important than that effected in the constitution of the other branch of the Legislature by the Reform Bill. Where, I ask, are the schedules abolishing a great part of the hereditary peerages which now exist, and supplying their places by Members appointed for life by the Crown? What is there in this measure to effect that great transfer of political power from one class of society to another which was accomplished by the Reform Act? Here a single patent only is given, creating a peerage for life in favour of Lord Wensleydale. Every one admits that in the case of Lord Wensleydale it is of no consequence whether a peerage is given to him for life, or with remainder to his successors; the importance of the question is derived solely from the precedent which it is supposed the Government intend to establish. Is that precedent one which is intended or is calculated to make an alteration in the character of this House? What I understand to be contemplated is that, now and then among the hereditary Peers two or three Peers without the right of transmitting their honours to their descendants should be introduced. The noble and learned Lord who opened the debate said that, although the grant of a peerage of this kind might not be illegal, it might still be unconstitutional. I entirely concur in that opinion. The distinction is a sound one, though I might find fault with the word "unconstitutional;" and I ask your Lordships to judge of what has been done from the supposed case which has been put by the noble and learned Lord. He says there is nothing illegal in the Crown granting any number of hereditary peerages; the prerogative of the Crown is not limited by any law—there would be no breach of the law if the Crown were to create 100 hereditary peerages in a single day; but he maintains it would be unconstitutional and fatal almost to the dignity and power of this House. 357 I agree with him in that opinion, and I say that, if Her Majesty were advised to swamp this House by the creation of 100 life peerages, that also would be unconstitutional and a gross violation of duty on the part of the advisers of the Crown, but that the noble and learned Lord brought forward no argument to show that if life peerages were created with due moderation and upon proper grounds, any more injury would result to the character of this House than from a similar creation of hereditary peerages. The prerogative of creating Peers for life is, no doubt, capable of being abused; but there is no prerogative of the Crown—there is no high power possessed either by the Sovereign or by any other authority in the State, which is not capable of being abused. Nevertheless, I repeat, that creations for life, moderately and judiciously made, imply no injury to the character of this House, and no departure from the essential principles of the constitution. But, then, we are told that Peers sitting for life would be inferior to those who sit under an hereditary creation. I think that is entirely unfounded. Look at the Members of the right rev. Bench. Does any man feel that any of those right rev. Lords is in any respect inferior to other Members of this House because he is called for his own life only, by the appointment of the Crown, to a station which gives him a right to sit here? Is their influence and authority in this House not quite as high as that of any one of your Lordships? With regard to Lord Wensleydale, when he takes his seat in this House, will any man contend that his authority and influence, the consequence of his high character, knowledge, and experience, would be in the slightest degree diminished by the fact that his patent does not contain the usual words of continuing his dignity to his descendants? On the other hand, will any man say that great advantages to the country, and to this House in particular, would not result from a moderate and judicious creation of Peers for life? There are two things which this House has to fear. One is, that its benches may become overcrowded by Peers not possessing adequate means for the maintenance of their rank; the other, that it may sometimes want among its Members a sufficient proportion of those who have raised themselves to the dignity of the peerage by their own talent and industry. It is absolutely essential to the continuance 358 of the high character of this House that a certain number of those who obtain an hereditary seat in it should be raised to the dignity of the peerage for their services to the State; it is of the utmost importance that we should have men in the House of Lords who have distinguished themselves by their personal services. But I by no means think that this distinction should be exercised in favour of lawyers only. I think other descriptions of services—naval, military, and political—ought to be so rewarded—in my view the distinction should be extended to men who have distinguished themselves in every walk of life. As to political services, would it not be of advantage that a Gentleman who in the other House of Parliament has raised himself to distinction, and has acquired great knowledge and experience of the affairs of the country, should be raised to the peerage, and be able to bring to this House the benefits of a matured judgment? Is it desirable that in cases where lawyers and generals, and admirals might have access to this House, they should be precluded from coming here, unless they have what may be called a proper endowment for the support of their dignity and rank? There may be men who are well fitted to take their places in this House who may have large families and small fortunes, quite sufficient for themselves, but who are nevertheless unable, with justice to their families, to leave such a fortune to the person who is to succeed to the peerage as might be desirable for the due maintenance of its rank and dignity. Yet that they are often so excluded is proved conclusively by the letter of Lord Eldon, which has been read this evening, which shows that an hereditary peerage has often proved an injury to the individual, and to the public. Men whom it is desirable to bring into this House may often possess means amply sufficient to support their rank during their own life, but from having only a life income or a numerous family to be provided for may be unable to accept an hereditary peerage, without injury to their family. In such cases, it would be most desirable to grant peerages for life only. I may be asked, are we then to refuse to grant hereditary honours as heretofore to those who have rendered distinguished services to their country? By no means. Those services have frequently been rendered by men who have acquired a fortune quite sufficient to make a provision for the peerage. In other 359 cases, Parliament may be justified in making a sufficient provision for the person who receives the honour, and for his descendants. In all such cases, it is desirable that an hereditary peerage should be granted. It is of advantage that the titles of Marlborough, of Nelson, and of Wellington, should recall to distant generations the achievements of the great men by whom they were won, and of the glory they have gained for their country. But will any man tell me that it does not often happen that an hereditary peerage cannot be granted to persons who have a fair claim to it, because they have not sufficient means to maintain its dignity, while the Government of the day do not feel justified in asking Parliament to make a permanent provision for their descendants? In these cases, is it not an evil that admission to this House should be denied to them? The effect of creating peerages for life would be the more easily to open the doors of this House to men who it is desirable should be admitted. But we are told the practice might be abused. No doubt; but I see no reason for believing that it would be more likely to be abused for the purpose of increasing the power of the Minister in this House than the creation of hereditary peerages. It is practically found to be impossible for any Minister to create peerages to support his tottering power. This House is now so numerous a body, and so large a proportion of its Members are so entirely independent of the Crown, that any abuse of the prerogative of creating Peers would be sure to create as much opposition to the Minister as would more than counterbalance the support he obtained—the votes lost to the Minister would be quite as many as he would gain. I think, then, that we have the same security against abuse in the case of life peerages that we have in the case of the hereditary peerage. That security is derived from the power of public opinion, and the opinion of this House, in restraining such abuse, and also from the control exercised by the Crown, for in creating new peerages the Sovereign is not expected to accept without question the advice of the Minister. The Sovereign is bound to exercise a discretion on that point; and so sound is the feeling of the country on this subject that I am convinced, in the event of injudicious advice being given by the Minister, the Sovereign would be supported by the people in refusing to receive it. As to the Motion before 360 the House, even if I were convinced of the illegality of the patent, and that the practice of creating life peerages would be more dangerous than I believe it would prove, still I should think that the course proposed by the noble and learned Lord (Lord Lyndhurst) is not that which we ought to adopt. If the noble and learned Lord had simply asked your Lordships to appoint a Select Committee, in terms implying no previous opinion on the question of the legality or illegality of the patent, but to inquire into the whole subject and report to the House, I should have thought it a Motion which the Government ought not to resist. I at least should not have thought it my duty to support them in opposing such a Motion. Considering how long it is since any life peerages have been created—considering that persons whose opinions are entitled to the greatest weight regard the legality of the step as being at least doubtful—considering, also, that a much greater number of persons, while they admit the legality of the course taken, are of opinion that it is a dangerous exercise of the prerogative, and if admitted, at all, ought to be subject to some restriction—considering how generally those opinions are entertained, I do think that the patent which has been granted to Lord Wensleydale might properly have been inquired into by a Select Committee. Such a Committee would have been able carefully to consider whether the patent is legal or illegal. If they came to the conclusion that it was illegal, then they might have been able to advise your Lordships as to the steps which it would be proper to adopt; because, even if you are convinced that the patent is illegal, it is not easy to say what course you should take. Then, if the Committee were to find that the patent, though not at variance with the strict letter of the law, was yet a dangerous exercise of the prerogative, which required to be guarded, it might have recommended whether legislative measures, or an Address to the Crown, or what other means, should be adopted. In this matter the advice of a Select Committee might have been of the greatest advantage; and, I believe, that a small number of your Lordships, meeting in such a Committee, would have been competent to consider the question, and to throw great light upon it. But that is not the course the noble and learned Lord has asked us to follow. He calls upon us to adopt a Motion for referring the patent 361 to a Committee of Privileges, and that in terms which prejudge the question, because the Motion speaks of a patent "purporting" to confer a life peerage in favour of Sir James Parke. But a Committee of Privileges is a Committee of the whole House, and in such a Committee there is no greater opportunity for deliberation than there is in this House. The noble and learned Lord Chief Justice said, "Let us refer this question to a Committee of Privileges because it is impossible to consider it by rambling speeches made in the whole House,"—but there will be an equal opportunity for rambling speeches when we are in a Committee of Privileges. In a Committee of Privileges deliberation is impossible. If we go into such a Committee we must discuss "ay" or "no" whether we shall adopt some particular course which may be recommended. The noble and learned Lord who asks us to go into Committee must, I presume, have decided what resolutions he will move in that Committee. I wish he had intimated what those resolutions are to be. I wish he had told us what course he proposes to adopt when we are in Committee; because it will not conduce either to the dignity or the character of this House if, having got into a public Committee of Privileges, and, having implied our opinion that the patent of Lord Wensleydale is illegal, we find no course suggested to us which is not open to very grave objection. I am as anxious as those who support the Motion to maintain the character and dignity of this House. I regard the present aspect of public affairs as not a little threatening, and I know nothing more important—no greater safety for the future—than that this House should preserve its character, its dignity, and its moral influence in the country; but the adoption of any rash or hasty course in a matter of such extreme importance as this is not calculated to accomplish that object. The noble and learned Lord has not given us any information as to the course he will propose in Committee, and he has thereby given a significant intimation of the difficulty which he feels there will be in deciding on that course. I can only, therefore, suggest to the House the different resolutions which, in my opinion, may possibly be submitted to the Committee. Will the noble and learned Lord move a resolution declaring that this patent is illegal? I think it would be extremely difficult, in the face of the authorities cited 362 from the woolsack, to support such a resolution. But even if you are convinced that, in point of law the patent is not good, what will be the result of a discussion in a Committee of Privileges? What is the authority of such a Committee in law? Will you, upon the strength of its decision, when Lord Wensleydale presents himself at the table, refuse to permit him to take the oaths? I think that is a somewhat difficult point.
Certainly; most certainly. If the Committee decided that the patent did not give a right to sit in this House, the House would be bound to refuse to allow him to take his seat.
§ EARL GREY
My noble Friend says, "Certainly." Does he mean, then, to go this length, and to say that, if there had been no patent whatever, if, by the authority of the Crown, a writ of summons had been sent to Lord Wensleydale, and he had presented himself with that writ of summons only, and without any patent, you could have refused to permit him to take the oaths and his seat?
§ EARL GREY
My noble and learned Friend says you could not; but does a writ of summons recite the patent? If it does not, and you prove the patent to be a nullity, in what different position does Lord Wensleydale stand from that in which he would be placed if no patent had been issued, or if it were thrown into the fire, and he came to the table with nothing but the writ of summons? I cannot but think that your Lordships would be placing yourselves in a position before the country which would be not a little dangerous and questionable, if you were to take upon yourselves, on this nice construction of law, to say that you refuse to admit a writ of summons, issued by Her Majesty's authority, as sufficient to enable Lord Wensleydale to take his seat in this House. Suppose that, in order to test the question of Lord Wensleydale's being a Peer or not, some person—without any ground for the charge, but for the mere purpose of settling the point—should charge him with treason or murder. A court of law would then have to decide whether he was or was not a Peer. The opinion of the Judges might be contrary to the opinion of this House, and the subject might even be brought before the House, which might find itself called upon to decide, in its appellate capacity, a question which had previously been irregularly and improperly 363 decided by a Committee of Privileges. You might in this way find yourselves at issue with the Judges of the land; and is that a position in which we ought to place ourselves, or the character and dignity of this House? Will it be proposed that an Address be presented to the Crown, begging that a new patent may be issued, according to the ordinary form, to Lord Wensleydale? Would that be a safe course? What might be the course taken by the other House of Parliament? Is it desirable that, upon a question of this nature, we should bring ourselves into a dispute with the Crown and the House of Commons? Those who are wellwishers to the authority of this House would, I think, most carefully avoid placing themselves in such a position. What other course is there to pursue? You might come to a resolution that it is desirable legislation should take place on the subject; but do you think the success in the other House of any Bill that might be proposed would be rendered more probable from the circumstance of its having been originated by so irregular a tribunal as a Committee of Privileges? Before you adopt any step which may lead to most serious consequences—the ultimate issue of which no man can foresee—I would say, refer the question to a Select Committee of this House, by whom it may be calmly and deliberately considered, not in public, not before strangers, but without that excitement which necessarily attends debates in large assemblies. These are the grounds upon which I cannot concur in the Motion of the noble and learned Lord. I am far from venturing to give a positive opinion as to whether it is upon the whole expedient to create life peerages or not. I see many advantages in connection with such a measure, but I am not insensible to the existence of some disadvantages. Still less am I prepared to give an opinion whether, in order to create life peerages, the Government have taken the course which it would have been most desirable to adopt; but, whatever judgment we may form upon these points, I think the Motion for referring the question to a Committee of Privileges is one to which we cannot safely give our assent.
§ THE EARL OF DERBY
My Lords, exhausted as your Lordships must be, and exhausted as this subject has been, by the long and laborious and very learned debate which has taken place—and fully conscious that it is utterly out of my power to add 364 anything to the force of the able arguments by which the Motion of my noble and learned Friend has been introduced and supported by learned Members of this House, although I shall only detain your Lordships for a very few moments, I cannot reconcile myself to give a silent vote upon a question which, whatever may be the opinion of the noble Earl who last spoke, appears to me to involve nothing less than an organic change of a most extensive description in the constitution of this House. I cannot reconcile it to myself to give a silent vote, as having the honour of being the organ of that great Conservative party in this House, which never more fitly and appropriately discharges the duties which belong to it than when it defends the rights of the constitution against violent and forcible encroachment, whether on the part of the Crown or of the people. I cannot, therefore, permit myself to remain wholly silent—as feeling a deep interest in this question, and having myself the honour of being the fourteenth representative in this House of an hereditary earldom, which now for 400 years has, in hereditary succession, sent representatives here—when I find that the privileges of the House are attacked by an exercise of the prerogative for which the faintest shadow of a precedent must be sought at a period antecedent to that at which the earliest of my ancestors had the honour of a seat here. Let me entreat you to consider what, in these days, is meant by the prerogative of the Crown. We live not in times when the Lords or the Commons have to protect themselves against capricious and arbitrary encroachments. Those days are long past and gone; and the prerogative being the power of doing that which is beside the law, it is not now vested practically in the person who wears the Crown, but, as we all know, in the responsible advisers of the Sovereign. Consequently, the extent of the prerogative at the present day is practically the extent of the irresponsibility of the advisers of the Crown. Therefore, on every ground, we are bound to see that not only is the prerogative not carried to an illegal, but also that it is not stretched to an unconstitutional extent. But we are met at the outset by a strange objection from the noble and learned Lord on the woolsack, which, if it prevails, there is certainly no use in the House of Lords further discussing this question. He, paying a deserved compliment to the person on whom it is proposed 365 to confer this life peerage, at the same time frankly admits that this is the most favourable opportunity for trying the question. Favourable opportunity for trying what question? The question of the constitutional power of the Crown to grant a patent limited for life, conferring on Lord Wensleydale the power to sit and vote in this House. But when we propose to try this question, the noble and learned Lord turns round on us, and tells us that it is a question with which we have nothing to do—that we have no right to inquire into it—that supposing the noble Baron appeared to take the oaths and his seat under the writ of summons, and under the writ alone, would we then dispute the power of the Crown to grant that writ? No; we do not mean to dispute it; but is the writ to convey a peerage for life, or a peerage with remainder? "Then," says the noble and learned Lord, "you may undoubtedly discuss that question, but this is not the right time to argue it. It should rather be done after the noble Baron has spent the remainder of his days in this House, and, when the son of his daughter comes to claim the succession, then we may contend that he ought not to have sat at all." That would certainly be a strange mode of proceeding. It has been held at all times that the summons by writ confers a barony by inheritance; but, when the learned Baron appears in this House, and presents his patent limiting his peerage to his life, and upon that patent presents his writ, the patent overbears the terms of the writ, and either the patent is null and void, and the writ consequently equally so, or else it is within the power of the Crown to confer this description of peerage. In short, we must discuss the validity of the writ at the moment that it is attempted to act upon the patent, or we must for ever after hold our peace. Of all the extraordinary arguments I have ever heard, that of the noble Earl who has just sat down is the most extraordinary. Differing altogether from the noble and learned Lord, who tells us it is no business of ours—that we have no right to inquire into the validity of the patent—the noble Earl opposite says, "You are adopting a rash and precipitate course in seeking to refer the patent to a Committee of Privileges." He admits there is much to be said, not about the legality, but about the constitutional nature of the creation of life peerages; he thinks that the Government has not taken the most convenient mode of raising this question; 366 but to refer it to a Committee of Privileges, who, by the terms of the Resolution, have a preconceived opinion on the question at issue, would be a most irregular proceeding; and, moreover, such a Committee would be a wrong tribunal. I know not, however, that that course would be more precipitate or unreasonable than the one recommended by the noble and learned Lord on the woolsack, namely, that without inquiry we should by Resolution declare the patent illegal and unconstitutional. We propose a much more prudent and moderate course than either of these alternatives; because, certainly, if you were to declare the patent illegal, and that under it Baron Parke can have no right to take his seat, the noble and learned Lord would have denounced it as a monstrous proceeding, without inquiry, without examination of documents, without consideration of precedents, to pass a Resolution declaring the illegality of the patent. My Lords, I rather desire to have the question fairly considered and argued at the bar by counsel, bringing to bear upon it the highest degree of legal learning, and sifting the subject thoroughly, before this House pronounces a decision upon it. But the noble Earl (Earl Grey) having, to my extreme surprise, condemned this course as "precipitate," what was the course which he was prepared to recommend? To refer the question to a Select Committee, instead of to a Committee of Privileges. My Lords, all I can say upon that is, that as the noble Lord who should move the Committee would regularly have the right of nominating it, such a course would scarcely be so respectful to the Crown, and certainly not so much in accordance with precedent and authority as that which is now proposed, to refer it to the Committee of Privileges. For, although the reference of a specific patent creating a life peerage to a Committee of Privileges has never before taken place, yet there are on record proceedings very analogous to such a reference. For example, the validity of a patent issued by the Crown has been disputed in the House of Lords, and has been afterwards referred to a Committee of Privileges for examination. That is really the only case at all bearing on this question. In the reign of Charles I., in the year 1627, a case arose in which a patent of precedence above all other barons was granted to a certain Peer; but the House of Lords refusing to acknowledge its validity, what course 367 was adopted? Why, it was sent before a Committee of Privileges. Here is a patent which we believe to be illegal, and wholly unconstitutional. We do not, however, call on you now to pronounce upon that question; we simply say, "Do not recognise the validity of this patent until, by reference to, and collation of, former precedents, you have verified its validity." After the display of learning we have listened to to-night, I will not enter into a discussion of the legal questions now at issue. I shall pass over the whole of the old precedents with this one observation, that, having listened from first to last to the entire series of authorities which have been adduced on both sides, I have arrived at the conclusion—which will not be disputed—that there is not more than one instance, and that a very doubtful one, in which the Crown has conferred a patent on a Peer for life, under which that Peer has sat and voted in this House without his patent receiving the previous sanction of Parliament. But I say frankly that I have no respect for any precedent affecting the prerogative of the Crown that dates further back than the year 1688; and I confess I should have thought that that doctrine would have been in strict consonance with the feelings and principles of a Whig Administration. And when I find, my Lords, that we are dealing with the precedents of an exercise of the prerogative of the Crown that has never been sanctioned or ventured upon by any Ministry under the House of Hanover—that was never attempted by any Sovereign of the House of Stuart—that was not even acted upon under the not very scrupulous rule of the Tudors, but for which we must go back to the dark days of the Plantagenets and to the troublous period of the civil wars—I say that to adduce such precedents, even if you can cite a single one bearing directly on the point (which I dispute), is a sheer waste of time and words. I cannot draw a distinction, in matters of prerogative, between what is illegal and what is unconstitutional. I understand it is intended to argue that that alone is illegal which is forbidden by direct enactment, and that all not so forbidden may be highly unconstitutional, but is not illegal. It is not worth while to discuss that argument; but it satisfies me and destroys the validity of this patent, that, although within the letter of the law as expounded 200 years ago, it is at variance with the practice of the constitution, and is 368 highly unconstitutional in its bearing upon this House. I defy noble Lords to deny these two propositions,—first, that there never has been, since the constitution was settled—nay, not for 400 years—an attempt to establish such a precedent as this; and, next, I defy you to deny that this precedent being granted would establish a material and serious alteration in the character of the House of Peers. I am prepared to lay it down as a proposition which cannot be controverted, that from the very earliest period the very essence of the peerage has been that it was hereditary. I do not mean to say that in the early days of our history that principle has been kept very closely in view; but it will not be denied that, originally, the great Barons of the realm, holding their privileges by tenure of their lands, to which they had the right of hereditary possession, were in consequence of that tenure hereditarily entitled to sit in Parliament as the great Council of the nation. We know that the issue of writs summoning the Barons to their seats in the Legislature first became necessary in the reign of Henry III., immediately after the battle of Evesham, by which the Crown, after a long series of civil wars, succeeded in crushing the rebellious Barons. At the period of which I speak the necessity of attending in Parliament was felt to be an onerous burden and not a privilege—a duty exacted by the Crown, and not a right claimed by the subject. From the indifference of the Barons to receive such honours, and from the troubled state of the times, it became necessary for the Crown to summon the Barons by writ to sit in Parliament, as well as about the same time to summon also the Commons by writs issued to boroughs. All examples drawn from those times are quite inapplicable to the present question, and any precedents that may be drawn from them are unworthy of practical consideration. But in later times, when the constitution came to be better understood, a rule was laid down which declared that notwithstanding the absence of all words conveying inheritance in the body of the writ, the writ of summons and the sitting in Parliament under it conferred, and always had conferred, an inalienable right of sitting in Parliament by inheritance. As early as the reign of Henry VI. claims were made to sit in Parliament by descent, under a writ of summons, containing no words conveying a right of inheritance, and were 369 admitted. The Crown took upon itself to issue patents limiting and altering the character of the inheritance, but I believe in the vast majority of cases, where the inheritance was limited at all, the patent did not proceed from the Crown alone, but was issued by the Crown with the advice and assent of Parliament. That the Crown, with the assent of Parliament, may limit a patent and the right of sitting to any extent, no human being will for a moment deny. The celebrated case of the peerage of the Duke of Cornwall was settled in a manner opposed to the common law of the land, and it was recited by the charter that, being contrary to the common law of the land, it could not be granted by charter, and consequently was granted by consent of Parliament. There is the remarkable case of Thomas of Woodstock, made Earl of Bucks in the first year of the reign of Richard II. The patent was granted without the assent of Parliament; but a few years afterwards a new patent of the same peerage, to the same person, by the same Sovereign, was issued with the authority of Parliament—the patent reciting that it was granted for the security of the grantee and by special requisition. In the reign of Elizabeth it was distinctly laid down that writs without any form of words conveyed inheritance. Now upon what principle was that decision arrived at? evidently upon the principle that from the earliest period the right of inheritance had been deemed an essential constituent of the peerage. I do not say that that essential qualification might not be dispensed with by the overruling power of Parliament—which power no one has pretended to deny—but this I do say, we are called on to assent to the doctrine, if the present Lord Chancellor is to be relied on, that, without the power to argue or question, and without exercising any authority, we are bound to consent to the introduction, sub silentio, of a practice not acted upon or recognised for a period of 400 years, and that, too, in violation of what is impliedly laid down even in the earliest instances—that the peerage itself carries with it an hereditary character. This, I say, my Lords, is a question which we ought not to pass over in silence. The first question is, whether, according to constitutional history, the Crown can exercise this prerogative without the assent of Parliament? I believe it cannot. I believe it can no more do so than it can reappoint the High Commission 370 Court, or revive any other thing which may have actually belonged to it, but which has fallen into desuetude; and I think this is not the moment to attempt an extension of prerogative which no Minister has ever ventured to recommend. And now as to the question of expediency, the question is not whether it is expedient that Mr. Baron Parke and two or three other eminent Judges should have seats in this House during their lives, for the purpose of assisting your Lordships in the discharge of your judicial functions; but whether it is expedient that the Minister of the day shall have the indisputable power of swamping the House of Lords by creating peerages for life. It is said that the case in which the question is to be tried is in itself an unobjectionable one. So much the more dangerous; for almost all the evil consequences in our history have resulted from precedents which were not at first objectionable in their exercise. But this is in reality an attempt to alter the character of this House by infusing into it the element of a number of nominees of the Crown in the creation of peerages for life. If the noble and learned Lord on the woolsack thinks it desirable, for the sake of transacting the judicial business of this House, that there should be an addition to the legal strength of the House, let the Ministers of the Crown bring in a specific measure regulating, declaring, defining, and restricting the prerogative, and let Parliament and the Crown know the precise extent of that prerogative. Mr. Justice Blackstone declares that the constitution has established certain auxiliary subordinate rights of the subject which serve principally as outworks or barriers to protect and maintain inviolate the three great and primary rights of personal security, personal liberty, and private property. These subordinate rights Black-stone defines to be, first, the constitution, powers, and privileges of Parliament; and secondly, the "limitation of the King's prerogative by bounds so certain and notorious that it is impossible he should either mistake or legally exceed them without the consent of the people." Thus, the limitation of the prerogative by bounds certain and notorious is one of the three barriers and outworks which Judge Black-stone considers essential to the three great and primary rights of personal security, personal liberty, and private property. But can we say that the prerogative of the Crown, as now claimed, is so well known 371 and defined that it cannot be doubted? I apprehend, my Lords, that the prerogative of the Crown must he fixed by the practice and custom of the Crown, and of the Parliament, and if the Ministers of the Crown seek to alter it they must alter it by law, and obtain the assent of Parliament to a measure declaring and restricting the prerogative. But do not let them assume a power which is negatived by the entire absence of any precedent since the present constitution of Parliament. We have heard the case of Lord Somers quoted, and the painful position in which he was placed has been brought forward as an argument in favour of life peerages, and the prerogative of the Crown to create them. But the high merit of this individual is the very strongest argument, to my mind, that can be used to show that the Government of that day never dreamt of such an exercise of the prerogative of the Crown. The noble and learned Lords who commenced this discussion carefully confined the question to the legal functionaries who might be introduced into your Lordships' House to assist us in the performance of our judicial duties. But the noble Earl who has just sat down very naturally extended the question much further. If this precedent be allowed, why should not men who have served with distinction in the army and navy—men of science too, for aught I know—who labour under the impediment of poverty, be placed in this House to exercise co-ordinate jurisdiction with your Lordships? The noble Earl's argument is perfectly logical. If you admit this claim of Baron Parke you admit the power of the Crown to grant a patent similarly limited in all cases. The noble and learned Lord on the woolsack said that the danger of a Minister swamping the House was perfectly visionary. But although the House consists, as he said, of 450 Members, of what does a majority of the House consist? Will the noble and learned Lord tell me that no influence might be exercised by the introduction not of 100, not of twenty, but of nine Members? Might not twelve or fourteen Peers, introduced with the peculiar qualification of poverty, and, therefore, the more under the influence of a Minister, with peerages held during the good pleasure of the Crown (because, if they are admitted for life, they may also be admitted upon those terms), altogether alter a decision of this House? Would a Minister obtain no undue influence by 372 being able, as one of those peerages dropped off, or as an hereditary peerage became extinct, to supply its place with another peerage for life? You say there is no danger, because every Minister must be guided by public opinion. But that is the greatest of all dangers if, by public opinion, you mean the opinion of the other House of Parliament. Suppose the Lords oppose a measure which a Minister desires to carry, and which the Commons have passed by a large majority—what more easy than to create a sufficient number of Peers to carry the measure through the Lords? The Minister would run no great danger of impeachment, for he would have acted in deference to public opinion—that is in deference to the House of Commons—and the consequence would be that this House would become an absolute cipher in the Legislature. My Lords, if you admit the power of a Minister to introduce even one life peerage at his discretion, and to keep that peerage dangling from father to son as a bait for further services, I tell you that the hereditary character of this House is gone—its usefulness in legislation is gone—its independence is gone—and you had better abdicate your functions and intimate your readiness to assent to anything the House of Commons may please to dictate. This is not a visionary apprehension. I am putting a case which must arise, in the struggle of parties, whenever we have either an unscrupulous Minister, or a weak Minister, who, being dependent upon a narrow majority, and wishing to strengthen it, chooses to appeal to the worst feelings of the House, and by overbearing your Lordships, obtain for himself a temporary renewal of power. You cannot argue from the merits of the individual you propose to elevate. Even if Baron Parke or any other equally learned Lord were willing to submit—as I think few men would be—to the comparative inferiority of a peerage for life, the precedent must inevitably lead to abuses, the introduction of less worthy individuals, to a serious increase in the power of the Crown, and to the degradation of your Lordships' House. It has been said that there is no danger of the Crown granting its favour to unworthy persons; but by whom will the selection of the individuals in whose favour the prerogative of the Crown is to be exercised be made? With that it may be said that this House has nothing to do; but if you admit the principle that the Crown may create Peers for 373 life, but subject to control as to the qualifications and merits of the individuals by the Government of the day, then you immediately introduce a doctrine not only dangerous to the prerogative itself, but which will expose the whole monarchical constitution of the country to destruction. From the moment you determine to act upon this principle you will have signed the doom of the House of Lords. It may not be this year, or the next five years; but if you admit that principle, and it must be carried to its legitimate consequences, my belief is that the hereditary aristocracy, which is the support of an hereditary monarchy, will be shaken to its basis, and that if we ourselves should be spared the sight, our sons will witness the fall of that monarchy, which may for a time be upheld by the personal virtues of the individual who possesses the Throne, but which must fall the very first time its possessor become obnoxious to public censure or distrust. To suppose that the relations in which the different branches of the constitution now stand towards one another—when the Crown, the House of Lords, and the House of Commons are each exercising their legitimate powers—to suppose that such a system of things can subsist in conjunction with the principle now sought to be introduced is contrary to all reason, and contrary to all experience. What have we seen in our own Colonies? We have had men sitting for life in the Council, and have concluded that, because they had appointments for life, they would he independent of the Minister of the day. And what has been the consequence? Why, every colony in succession has declared against the nominee system. It has been abandoned by the House of Commons, and the Colonies are rejecting and casting to scorn the very system which you are now seeking to introduce at home. An upper chamber may rest upon one of two great bases; it may rest upon the hereditary character of the House—giving to it a stability and firmness, and, at the same time, giving to the Government of the country a stability and firmness which, in my conscience, I believe no other constitution can confer; giving to every individual of the House, by whatever means he may have obtained his seat, an indefeasible interest in the perpetuity of that House which can never be felt by nominees, who are here to-day and gone tomorrow; it may rest upon that principle 374 upon which the British constitution has rested for centuries—or you may rest that upper chamber upon the elective principle, but upon an elective principle varying somewhat in its character and in its constituency from the lower House. But between these two constitutional modes of government, by means of an upper chamber—namely, by the hereditary succession of its members who shall be independent of the Crown—or by an elective chamber, there is no alternative. If you seek to depart from either one of these two bases it will be a most delusive work, and one which will inevitably come to pieces in your hands. My Lords, I hope that neither we nor our children are to live to see the time when this great country shall degenerate into a republic, however well suited such an institution may be to other countries; hut of this I am sure, that if you desire to maintain an hereditary monarchy with a balanced constitution of the three Powers, to this you must cling as one of its main essentials—the hereditary character of the House of Peers. For one, I will not consent without a struggle to see the House of Peers swamped. I hope, therefore, that the question will be referred to a Committee of Privileges. I desire deliberately and carefully to consider the whole matter, and, if possible, to act with that Committee; but, at the same time, with a firmness which becomes this House, I will not consent that the Crown shall have the power of calling Peers to this House by the mere exercise of the prerogative, or that we shall be denied the right of discussing and deliberating upon the manner in which the power of the Crown has been applied in the exercise of its prerogative. I will not consent that we should deprive ourselves, by our own act, of that with which the House of Commons will not part—of that which is essential to every legislative body—namely, the power of being the judges of our own privileges, and the interpreters of the laws which regulate the rights of those who have the honour of a seat in your Lordships' House. I cordially concur in the Motion of my noble and learned Friend. I admire the ability with which he has brought it forward, and the temper with which he has stated his case. And as I think the proposal he has made is the most moderate and constitutional course that can be adopted, so I hope it is a course which, without reference to party feeling or politics on the one side or other, will 375 secure for his proposition the approval and assent of a very considerable majority of your Lordships.
THE DUKE OF ARGYLL
said, that he would not detain their Lordships by many observations at that period of the night. He found it very difficult to believe that the latter part of the able speech they had just heard came from a noble Lord who was himself somewhat mixed up in the transactions of 1832, which had been more than once referred to. The noble Earl said that it was not with the particular instance he found fault, as Baron Parke was a person they all respected, neither did he object to the object the Government had in view; but he said that he objected to the Motion, not so much on the ground that the creation of life peerages was illegal, though he thought that the precedent for creating life peerages was too ancient to be valid now; but he objected on account of the consequences—the dangerous consequences—that would flow from it to the independence of their Lordships' House, which he thought required previous investigation. Now, he (the Duke of Argyll) wished to point out that the danger of swamping the House of Lords by the exercise of the prerogative was quite as great from the creation of hereditary Peers, as from the creation of Peers for life. The noble Earl admitted that it was not in quiet times that the exercise of the power for this purpose was to be dreaded, but in times of great popular excitement, when there might exist a reckless Minister, or one placed in a situation of great strength, as in 1832. Now, they had the testimony of one of those Ministers in 1832 as to the motives which withheld them from attempting to swamp the House of Lords. The noble and learned Lord opposite (Lord Brougham) in his History of 1832, stated—When I went to Windsor with Lord Grey, I had a list of eighty creations, framed upon the principle of making the least possible permanent addition to our House and to the aristocracy, by calling up Peers' eldest sons—by choosing men without families—by taking Scotch and Irish Peers. I had a strong feeling of the necessity of the case in the very peculiar circumstances in which we were placed. But such was my deep sense of the dreadful consequences of the act, that I much question whether I should not have preferred running the risk of confusion that attended the loss of the Bill as it then stood.The noble and learned Lord said, that the Government had prepared of eighty peers, by means of who they might have swamped the House of Lords without making 376 any considerable permanent addition to the House of peers—by choosing the eldest sons of Peers—Peers without families, and Scotch and Irish Peers. But the noble and learned Lord said, that such were the dreadful consequences apprehended from the adoption of the measure that he should have probably preferred the worst alternative rather than have agreed to it. Did not that prove that the undoubted prerogative of the Crown, of making hereditary Peers, might be used for swamping the House of Lords? Were not the same motives which prevented the noble and learned Lord and Earl Grey from making a large creation of hereditary Peers always operating as a check upon any Government which might wish to swamp this House with life Peers? A Minister attempting any such measure would be threatened by dangers so manifest and so manifold, that he could not believe any Government, except, indeed, in times of most unusual emergency, would be persuaded to adopt that course. Their Lordships, however, were now called upon to affirm the principle that none but hereditary Peers should be created. The only result of such a resolution would be that in times of great excitement the Ministry would become utterly reckless, and would not even take the precaution alluded to by the noble and learned Lord in the extract he had just read, namely, that of choosing the eldest sons of Peers, men without families, and Scotch and Irish Peers, so that no permanent addition should be made to the House. He believed there was not one of their Lordships who would object to the moderate exercise of this prerogative; but they objected to it simply because they feared it might be abused at some future time. On this principle, however, they might object to the exercise of any prerogative whatever, because it was possible that all might be used in excess.
said, that in his position, with regard to the events of 1832, and referred to as he bad frequently been in the course of the debate, he felt it necessary to trouble their Lordships with a few words before they went to a division, especially after what had just fallen from the noble Duke, as well as from his noble Friend the Lord President, at an earlier period of the evening. He denied altogether that either he or his noble Friend near him (Lord Derby) were precluded by the fact of their having been Members of the Government of 1832, from expressing a 377 clear opinion against the creation of peer ages for life, which he hold to be inconsistent with, and dangerous to, the constitution. It was certainly his opinion, in which many others concurred, that, at the crisis alluded to, a large creation of Peers was not only justifiable, but required; and now, after the lapse of above twenty years, he retained the same opinion of its necessity at that crisis. It was not true, as had, from misapprehension of his meaning, been stated, that he had ever represented himself, and his revered and lamented colleague, to have shrunk from the measure, but only that, casting his eye back upon its probable consequences, he now doubted whether had the grievous necessity arisen they would have embraced the measure—whether they would have found it to be their only alternative. But whatever might—speaking at the present time—be his doubts upon that point, of one thing he entertained no doubt whatever from his distinct recollection of all that then passed, he meant the exceeding great relief which it would have been in their difficulties, the great facility they would have had in executing the measure, if they could have had recourse to life peerages. The noble Duke said that he (Lord Brougham) had been ready with an expurgated list of creations. It was true; but with all the expurgation that could be effected for the purpose of confining the intended creations so as not to make a permanent increase of the peerage, he most distinctly recollected that the number was exceedingly small of those whose creation would not have made the permanent increase so much to be avoided; and the possibility of life creations would at once have removed this the greatest of the difficulties in the way of that wholesale creation to which reference has been made. It had been argued that this sudden and extensive addition to the peerage is such a chance as can hardly ever arise; that such a violation of the constitution is hardly within the number of probable occurrences. But our political system might be violated gradually as well as suddenly; it might not be mangled by the sabre—it might be assailed by the stiletto, or exhausted by poisonous drugs; his noble Friend whispered homœopathic doses. Parties being nearly balanced, a Minister might turn the scale by a few life Peers, when the Sovereign, or his own alarms at encountering the great evils, and the greater risks of permanent additions, 378 would prevent hereditary creations from being resorted to. But independent of this manifest tendency of life peerages, there are other and insuperable objections to that change in the essential character of the peerage—its hereditary nature. A class of Peers would be introduced less independent, more subservient to the pleasure of the Crown, or rather of the Minister of the day. In conferring with those who had founded the French constitution of 1830, among others the exalted personages at its head, he remembered objecting to the great change just made in the Chamber of Peers. The answer was, hereditary Peers are all very well in England, but here they will not do; the Ministers could never depend on such for support. He regarded this as a great inroad upon our constitution, and a most perilous extension of the prerogative. Upon the hon. and learned individual in whose person it had been deemed advisable to make this experiment upon the constitution of England, he need not say one word, heartily agreeing in all the panegyrics which had been lavishly, but not too lavishly, bestowed upon him. He entertained for him all the affection of an old and intimate friend, and all the respect which was felt by the whole of their common profession. But the experience of all ages showed that it was in such cases of high individual merit that the most perilous things were tried. This truth had been declared by a famous statesman, and great practical authority of ancient times, the words, at least, were given as his by the historian, and their substance was in all probability correctly recorded as a warning to us—Omnia mala (said Julius Cæsar), ex rebus domesticis orta sunt; sed ubi imperium ad ignaros aut minus bonos pervenit, novum illud exemplum ab dignis et idoneis ad indignos et non idoneos transfertur. Into the question of its legality, he deemed it unnecessary that he should stop to consider, He confessed that the leaning of his opinion had been in favour of its strict legality, but he had, upon a closer examination of the authorities, found reason to entertain considerable doubts, and he agreed with the Chief Justice in desiring time and opportunity for further inquiry, especially into the precedents. He, however, would beseech their Lordships to consider upon what they were now called to decide, on what they were about to pronounce an opinion, and in what circum- 379 stances. Upon a great question of constitutional law, by far the most important that had arisen in our day, they were to decide with the opinion plainly indicated by two law Lords, and decidedly pronounced by a third, that life peerage was contrary to law. The noble Mover clearly showed that this was the opinion to which he inclined, though he deemed it unnecessary to decide the question. The Chief Justice declined now to pronounce decisively, but declared that, if he must decide, he held the creation illegal. The third noble and learned Lord, who had ably and elaborately gone through all the precedents, had no hesitation whatever, and at once declared that, in his opinion, the creation was contrary to law. The Lord Chancellor alone maintained it to be legal. But the step had been taken without the ordinary precaution of consulting the law officers of the Crown, a precaution always used where the matter was of any importance, and the least doubtful; not that their report is to bind the Government, but their assistance is required for greater security against rashness and oversight. He had a right, therefore, to assume that his noble and learned Friend on the Woolsack had formed his opinion without the ordinary consideration which, in so grave a matter, should have been given. Then let their Lordships reflect what they were about to do. They were, if they rejected the Motion, to pronounce, finally and irrevocably to pronounce, their judgment that the creation of Peers for life is legal, when all the law Lords hold it illegal, except one, who has not maturely considered the question, and his humble self, who confesses that the more he inquires the more he sees reason to doubt, and to agree with his learned brethren. Were their Lordships prepared to take this alarming step? By agreeing to the Motion, they pronounced no opinion either way; they only resolved that the question should be examined, and disposed of in the usual and satisfactory course, after full argument, it may be with counsel at their bar. By rejecting the Motion, they gave judgment, and finally on this great question of constitutional law, against the whole body of their legal members. Of such an ill-considered judgment they would speedily repent. If they only decided to go into the Committee, they never would have to blame themselves for having hastily overruled by their decision that of the authorities best entitled to their respectful consideration, and among them the Chief Justice of England.
§ On Question, their Lordships divided—Content: Present 79; Proxies 59; 138: Not-content: Present 53; Proxies 52; 105: Majority 33.
§ Resolved in the Affirmative.381
|List of the CONTENT.|
|Delewarr||Colville of Culross|
|Nelson||Willoughby de Broke|
|List of the NOT CONTENT.|
|St. Germans||Stanley of Alderley|
|Conyngham||Chester, Bishop of|
|Donegal||Durham, Bishop of|
|Fingall||Howard de Walden|
|Ripon||Stuart de Decies|
§ House adjourned till To-morrow.