§ LORD GLENELG
said, that in bringing before the House the Motion of which he had given notice, to refer certain questions to the Judges, he was not about to enter upon the merits of the general question, nor was it necessary that he should discuss whether the instruments on their Lordships' table were legal or illegal; neither should he discuss whether it was expedient or wise to raise the question at the present time. But he felt it to be his duty, as a Member of that House, now that the question had been unexpectedly raised, to consider what was the prudent, the proper, and most wise course to adopt under the existing circumstances. He confessed he looked upon the subject as one of the most important ever brought under the consideration of that House, and that being his opinion, he thought it should be considered with all the advantages of the assistance and counsel which the constitution of the country had provided for that House of 1122 Parliament. That was the simple object he had in view in making the Motion which he was now about to submit. He wished to know why, in this case, far more important than those cases in which that advice and assistance was usually obtained, the same course was not to be pursued, and why the House was upon this occasion to be deprived of that valuable assistance? It was well known that from time immemorial the constitution had provided for that House certain constitutional advisers and counsellors, and that when those great legal authorities were appointed they received a writ from the Sovereign directing them to attend that House and assist them with their advice. That had been its practice from a remote period, and was not now obsolete, for in conformity with that obligation they constantly attended in that House, and were perpetually called upon to give advice in matters of great importance. There was great wisdom and prudence in providing the House with such assistance, because in every legislative assembly composed of men endowed with certain privileges there was a possibility of their being carried away by temporary excitement, arising, perhaps, from the most generous motives, and, in consequence, the House might be led into adopting rash and precipitate measures; but the constitution interposed and provided a remedy, by giving them the aid of men selected by the Sovereign for their high posts on account of their professional knowledge and wisdom—men who had no interest in the subject under debate except that which the nation in general had, and free from excitement or passion of any description—men who entered not the stormy arena of politics—dispassionate advisers, called upon, not to control the decision or to bind the House by their opinions, but to give their Lordships all the assistance which eminent wisdom, knowledge, and experience could afford. That was a noble part of the constitution; and he would ask again why had not their Lordships availed themselves of it on the present occasion? The decisions and measures of the House were looked forward to with interest by the whole country, and whatever the decision might be, if those learned men to whom he had referred were consulted, it would have greater weight and authority with the country; but for their Lordships not to avail themselves of the advice of the dispassionate advisers pointed out by the constitution, and held in high estimation 1123 by the country at large, was wilfully to impair the solemnity and dignity of their decision. It might suffice to rest his case, but there was more than this to be considered. He confessed that, as an individual Peer of Parliament, he found himself placed in a position which required peculiar consideration. He was no party to the proceeding which originated the discussion; it was as new to him as to any Member of that House; but he found himself called upon to decide upon measures of great constitutional importance—measures connected with the law and the constitution of the country; and he ventured to ask—for he believed other Peers felt the same difficulty—whether the House ought not to have recourse to those persons who were especially given by the constitution to supply them with advice and assistance? No doubt they had already learned men in the House: he had heard their able and ingenious arguments with great pleasure; but he would inquire, with all deference to noble and learned Lords opposite, whether they formed proper substitutes for those learned personages to whom he had alluded? The noble and learned Lords who had urged able legal arguments upon this question were Peers of Parliament, and no doubt shared the feelings, and, it might be, the prejudices of other Members of that House; but the attendance of the law officers of the Crown and the Judges, in all cases where the peerage was concerned, was an indispensable adjunct in the deliberations of that House. Moreover, he must further observe, with all deference to noble and learned Lords, and admitting the ability with which they had argued the matter, that their able and ingenious arguments rather tended, in his opinion, to cast greater doubt and uncertainty on this question than in the first view of the case it seemed to have. The arguments, he repeated, were very able, but there had been something not quite satisfactory. There had been a shrinking from what appeared to be the main point. He wanted to know what was the law upon the subject. They were now called upon to take a most serious step. If they went into Committee, and agreed to the proposal of his noble and learned Friend, they would enter upon a course the end of which he could not see, and the House would pledge itself to a line of action from which it could not retreat with honour nor unscathed. He felt for the honour of the House, for the integrity 1124 of its decisions, for the very safety of its constitution. Their Lordships' proceedings now challenged universal observation. They could not confine the question within that House. If they went into Committee, they would engage in a contest in which they must either persevere, or retreat in a manner which he did not like to contemplate. He was sure his noble and learned Friend (Lord Lyndhurst) would forgive him for saying that there had been a complete shifting of the ground on which the question had been originally placed. They had begun with one thing, and were now engaged in arguing a very different thing. At first the question was nothing but the legality or illegality of the grant. Such was the question, as it was stated in various parts of the country, that was about to be raised even before the Session. The very day on which the House met he found in the lobby a number of persons, Members of the other House and others, who said that the only question was, the legality or illegality of the grant, and, if legal, the whole dispute would end at once. Now, the question was debated upon the ground of expediency and constitutionality. When his noble and learned Friend commenced this discussion, with the wisdom that became him he abstained from grappling with that question—namely, what was the law of the land upon the subject? He said distinctly, the law of the land—for he was not at that moment speaking of the law of Parliament. His noble and learned Friend hovered upon the brink of the subject, but without entering boldly into it, and, finally, he altered the question and turned it into one concerning the practice of Parliament. But another noble and learned Lord (Lord St. Leonards), not acting with the same reserve, at once rushed into the question of legality or illegality, and without hesitation stated that the measure was illegal, and upon that ground he was prepared to decide the question. That being the first ground on which the case was put, he (Lord Glenelg) wished to ask why they had departed from it? Why had the question of legality been abandoned, and the case reduced to one of expediency, policy, and constitutional law? He was anxious to know what was the law of the land upon the subject; but the noble and learned Lord evaded that question; he banished his original argument, and suddenly introduced the question of expediency. But he (Lord Glenelg) did not want to be told what was expedient. He was uninformed 1125 as to the state of the law; he confessed himself so. He wished to know how to act in a great crisis; and therefore it was that he complained of his noble and learned Friend not giving him that information which would enable them to decide legally. It seemed to him that the Report returned by the Committee was not an answer to the question referred to them.
§ THE EARL OF DERBY
I rise to order. The Committee have not yet come to any Report. Their Lordships were about to go into Committee for the purpose of considering their Report, and, when the Report was agreed to in Committee and was laid before the House, their Lordships could discuss it.
§ LORD GLENELG
said, that the Report of the Committee, which their Lordships would be called upon that night to sanction, supposing it came before them, told them what they were to do. They were asked to examine and consider the letters patent creating Sir James Parke a Baron for life, and to report thereon. Those words were of a very wide and general character. Well, what was proposed to be the answer? Why, that the Committee, having examined the letters patent purporting to create Sir James Parke a Baron for life, report that neither those letters patent, nor the writ of summons annexed to them, entitled the grantee to sit and vote in that House. Now, supposing that the House were to sanction that Report, then he maintained that that answer did not at all correspond with the question, which was one of legality or illegality. If the instruction to the Committee had been that they should Report to the House whether the grant entitled him to sit and vote, then that would have been a direct answer; but that was not the question. He begged to state this view of the case in confirmation of what he conceived to be the exact nature of the argument as it had been hitherto conducted. The case had been argued by the law Lords as a question of authority. Were they to let the discussion rest upon authority alone? They had legal authorities in that House, 1126 and he confessed that, after what he had heard from those noble and learned Lords, he did not feel certain that their authority alone could with confidence be relied upon. But, if they were to be led by authority, he must consider what those authorities were, and the weight to which they were justly entitled. Now, he found that those authorities considerably differed from each other, and some of them from themselves. He alluded to this fact, not with a view of accusing them of any inconsistency, but with the purpose of showing how cautions and careful they ought to be in coming to a decision when they found that the best and ablest men differed from one another, and that they ought to surround themselves with all the legal advice which the constitution afforded them. Neither ought the decision of their Lordships to be impugned, because it might be shown to be opposed to some legal authority; but he wished to know on which side the greatest weight of authority was to be found. It seemed to him that the opinions of the most eminent authorities in the House were pretty equally balanced. The noble and learned Lord on the woolsack was decidedly in favour of the legality of the grant. The noble and learned Lord opposite (Lord St. Leonards) was equally decided in opinion of its illegality. The noble and learned Lord Chief Justice had argued the case on either side in a very powerful speech. No doubt the authority of the noble and learned Lord who commenced this discussion (Lord Lyndhurst) was of the highest kind; but he did not express any decided opinion on the point. But he (Lord Glenelg) begged to say—not with any disparagement to the authority of that noble and learned Lord—that there was an authority connected with this very subject to which he was surprised that no reference had been made in the course of the debate. He had a right to assume that the authority of Lord Wensleydale, who was second to none in legal knowledge and experience, was in favour of the legality of the grant. Did any man believe that that learned person, with his talent, experience, and honourable feeling, would have consented to come to their Lordships' House and assume his seat by virtue of a grant from the Crown, if he had not been deeply convinced that the grant was altogether legal? It would be an insult and an injury to that learned person to entertain a moment's doubt on the subject. Therefore, however great might be the legal authority of the 1127 noble and learned Lord (Lord Lyndhurst), he felt that he was not doing that noble and learned Lord any disparagement or injustice if he ventured to quote, in opposition to his opinion, the authority of Lord Wensleydale. He had already alluded to his noble and learned Friend (Lord Campbell), who having, on a former occasion, admitted the power of the Crown to grant a peerage for life, had since made an able speech against its legality; his noble and learned Friend might, therefore, be very fairly allowed to pair off with himself on the subject. The opinion of the author of The Lives of the Lord Chief Justices might be put against the opinion of the Lord Chief Justice. Amidst this variety of legal opinion, it was difficult to come to any conclusion, and therefore it was desirable to have all the legal authority which the constitution provided for the House in difficult and important questions. But, speaking of authority, he could not but observe that it had always been considered a habit among lawyers to look with veneration and almost with idolatry to the great men who had been their predecessors in the law. But there never was such a demolition of legal authority as had been effected by the legal authorities in that House during the last few weeks. The names of Coke, Selden, Dugdale, and Blackstone were held in high esteem by all who succeeded them; and yet it was remarkable that on the present occasion those authorities were no longer held in respect. And yet it was upon the authority of such men that this country had depended for ages past for guidance in constitutional law. It was upon the authority of those great men—the supporters of British freedom—that British law had been built; it was to them they were accustomed to appeal in difficult questions. He did, therefore, feel deeply, as every Englishman must feel, when he found the authority of those men set at nought and discarded by those who professed to be anxious to uphold the privileges and honours of their Lordships' House. But when they were told that, under these circumstances, they should follow the guidance of the great legal authorities in that House, he wanted to know whither those authorities would carry them? He must say they were carrying them to an extent to which he was not prepared to go. Let them consider that this was not a mere party question. They were called upon to-night, or would be called upon, to pronounce a decision affecting 1128 the prerogative of the Crown—the undoubted prerogative, which had never to that moment been disputed; and to gain their object, they were asked to demolish all those venerable authorities by which the prerogative had been supported. The House of Lords, interwoven as it was with the Monarchy—the proud champions of the Monarchy—the guardians of the Crown—whose ancestors had, with chivalrous daring, defended the Royal prerogative—were now, for the first time, endeavouring to assail that prerogative. They should beware how they called in question the exercise of the prerogative by which they had themselves been created. They should beware how they embarked upon such a course, and how, by acceding to the Motion of the noble and learned Lord opposite, they entered upon a contest with the Crown. Let them pause for a moment before thus committing themselves; let them give themselves breathing time, and in the meanwhile resort to their legitimate councillors to know what the law of the land really was on the subject. It might be that the law was adverse to this exercise of the prerogative; and if such were the case, however much they might lament it, their Lordships would be compelled to bow to what was pronounced to be the law. Before the House committed itself to the declaration that the exercise of the prerogative, hitherto unmolested, was now for the first time to be called in question, he wished the matter to be further considered. At least, let them ascertain the law, whether it was with them or against them. It had been said that the proper questions to be referred to the Judges were such as related, not to the privilege of Parliament, but to the law of the land; and that was the very ground on which he based his Motion. The simple question was, was the patent legal or illegal? That was a question of law, and the Judges were the fittest men to decide it. The noble and learned Lord opposite had argued that precedents on this subject prior to the Revolution of 1688 were of no value; and the Petition of Right and the Bill of Rights had been insisted on. This raised a question on which he wished the opinion of the Judges to be taken. He wanted to know, as a question of law, what effect had the great settlement of the Revolution of 1688 on the prerogative of the Crown? The answer to that question was involved in the Resolution which had been placed on their books. He wanted to ask the 1129 Judges to look at the Petition of Right, which was the commencement of the assertion of our great liberties, and the Bill of Rights, which was the recognition of those liberties, and to tell him, as lawyers knowing the laws of England, whether any of those Acts touched the prerogative of the Crown. Again, they were told that 400 years had elapsed since the exercise of this prerogative, and that consequently it had been brought into desuetude, and had become extinct. This was a novel doctrine in the House of Lords; it was asserted by great legal authorities; but he wanted to know what other legal authorities would say about it. He wanted to ask those learned lawyers whether, according to the law of England, there was any period of time which barred the prerogative of the Crown? Such an objection coming from that House seemed to him to be peculiarly ungraceful. They were now consulting for their own privileges; and they were asked to declare that the prerogative of the Crown should be limited, shorn of some of its powers, and that the mere lapse of time should be a bar to its exercise. What was the law which that House and the nation recognised with respect to the lapse of time in enforcing the claims of Peers? By the law of the land, no length of time could bar a Peer from claiming his rights in that House. This principle had been asserted by the House most unqualifiedly. In one case it was alleged that a lapse of 315 years, during which the peerage had been in abeyance, barred a Peer from coming into that House; but all the law and learning of the House rose to protest with one voice against such a doctrine, and to declare that, according to the laws of this country, there was no length of time which would constitute such a bar. Such being the case, it would be peculiarly ungraceful in them to go out of the way to assert and maintain that lapse of time should be a bar to the exercise of the Royal prerogative. Such a course was unworthy of the House of Peers—unworthy of those who existed by virtue of the prerogative. As a question of law, he should like to know upon what grounds and principles it was contended that the exercise of this prerogative was barred. He could not see why the prerogative of the Crown should not be placed on as favourable a footing as the privileges of that House. At all events, let them place themselves in a condition to give an 1130 opinion upon the subject. He particularly regretted that this question should have come before the House of Peers. It was their undoubted right to prevent unauthorised strangers from entering their chamber; but they might carry the principle to an extreme. Was it ever heard that any body had the right of questioning the exercise of that authority by which itself existed? He could not but think their Lordships were little aware of the difficulties into which the House was about to plunge. The House was in a false position—in a position in which it never ought to have been placed. He had had no share in such a result, but he felt the deepest regret that anything like a contest should take place between the House of Lords and the Crown. As a loyal subject of his Sovereign, he objected to the slightest abridgment of the Royal prerogative. It was not consonant with the principles of that House—it was against their feelings and their hearts to contest the prerogative of the Crown. Believing that the liberties of the country, the exercise of the Royal prerogative, their Lordships' privileges, the privileges of Parliament, and the liberties of the people, were all bound up together, and that one could not be shaken without weakening the others, it was with deep regret he saw the House of Lords engaged in such a conflict. Let them, at all events, not take a plunge in the dark. Let them ascertain what the law of England was on this question by consulting the highest authorities to which they could refer. They were not committed to any measure; the step they had already taken was not an irretrievable one; and he warned them not to defer until the time for consideration was past, and repentance was in vain. The noble Lord concluded by moving—That the following Questions be put to the Judges; namely—Is it in the Power of the Crown to create by Patent the Dignity of a Baron of the United Kingdom for Life?What Rights and Privileges does such a Grant confer?
said, he entertained the most sincere respect for his noble Friend who had just addressed their Lordships, but he felt bound to complain of the course which he had adopted on the present occasion. He did not complain of the Motion of his noble Friend, that the Judges should be consulted, but rather of 1131 the manner in which he had brought it forward, for he had taken the opportunity of entering into the whole events of the case, and had made a speech which would have been much more appropriate when their Lordships were considering in Committee the Resolution of his noble and learned Friend. This the noble Lord had done instead of supporting his own Motion; and then, to his great astonishment, his noble Friend had sat down without even telling their Lordships what the questions were which he had risen to propose should be put to the Judges. It became, therefore, his (Lord Campbell's) duty to state to their Lordships what those questions were it was proposed to ask the Judges. The questions were—Is it in the Power of the Crown to create by Patent the Dignity of a Baron of the United Kingdom for Life? And, what Rights and Privileges does such a Grant confer? Now, his noble Friend had not brought forward a single argument to show that those questions were questions which could properly be submitted to the Judges. The Judges were the constitutional advisers of their Lordships' House upon matters which fell within their cognisance, and upon such matters they could be properly consulted; but it was the duty of his noble Friend to show that those questions came within that category. Now, he (Lord Campbell) would take it upon himself to say that, upon subjects like the present, the Judges were not the constitutional advisers of the House. The question was a question of privilege, which must be dealt with by their Lordships themselves. He should not follow the example of his noble Friend by entering into the merits of the question, or in adducing any argument with regard to the Resolution of his noble and learned Friend opposite, which would be proposed in Committee; but there was one topic which he could not refrain from noticing, which had been adverted to by his noble Friend. His noble Friend had suggested that their Lordships should not entertain this question, because, by doing so, they might place themselves in antagonism with the Crown. Now, he had the greatest possible respect for the Monarchy; and would uphold all the first prerogatives of the Crown, properly exercised. But that prerogative might be exceeded; and, if it were, then it became the duty of those who respected the prerogatives of the Crown to see that their exercise was restrained. All the 1132 arguments which had been adduced by his noble Friend would apply equally to a patent for a term of years, or for a single light, or during the pleasure of the Crown; but if grants of such peerages were conferred, were their Lordships bound to admit that such grants conferred upon the recipients of them the right to sit and vote in Parliament? The noble Lord upon such a principle would make the House like a Divan under the Grand Senior, or reduce it to the condition of the Senate of a neighbouring country, whose only office was to register the decrees of the supreme power. The exercise of the prerogative of the Crown might be watched, and ought to be watched; and there was a tribunal appointed to decide whether the Crown exceeded or had acted in accordance with its prerogative in matters referring to the creation of Peers, a tribunal recognised by the constitution of the country, and that tribunal was their Lordships themselves. With regard to the creation of a Peer, that House was the tribunal to decide whether the creation was legal; and if they had not that power, the sooner they abdicated their functions the better. Now, with regard to the first question which it was proposed should be submitted to the Judges, was that a fitting question to submit to the Judges? Why, it was a question to which there could be but one answer. There was not the slightest doubt that the Crown could create a Peer for life, or for a term of years, or for the life of another, or during will, or could create any new dignity, and confer it upon any one it pleased. But that was a very different thing from having the power to appoint a legislator—a person to sit and vote as a Member of that House; and the question which their Lordships would have to decide would be, whether a life peerage conferred the right of sitting and voting in Parliament, and it certainly was not necessary to assemble all the Judges to answer a question upon which no doubt existed. The second question was, what were the rights and privileges conferred by a peerage for life? It was not proposed that there should be any argument of their Lordships' House, in the presence of the Judges; but the Judges were to be asked to sit down and write a treatise upon the privileges of a Peer for life. Now, he had that morning looked into Blackstone, and he found that the first privilege of a Baron, mentioned by that high authority, 1133 was that, in coming to Parliament, he might in passing through any of the King's forests kill a deer, and if the keeper were not there he was to blow his horn, and it might be one of the questions for the Judges whether a Peer for life would be entitled to a similar privilege. The next privilege of a Peer was, that he was the hereditary councillor of the Crown. That could hardly be said of a Peer for life. Did they suppose that all the fifteen Judges would agree upon these questions? Then a question would arise, whether the widow or daughter of a Peer for life would be entitled, on his death, to certain privileges. The noble Lord had said that he should like to know what effect the lapse of time had on the prerogative of the Crown; but there was no such question here. What the Judges would have to do was, to sit down and write a treatise upon all the privileges of a Peer, which would of necessity be a somewhat voluminous publication. He had the utmost respect and reverence for his learned brethren on the bench, who, he believed, discharged their duty in a manner worthy of the highest praise when that duty fell within the limits of their own legitimate functions; but he did not wish to see them taken from their proper sphere, and engaged upon such a task as it was now proposed to allot to them. They might reasonably require, not until the end of the Session merely, but until the meeting of another Parliament, before they could possibly be expected to give an answer to the question. The learned Judges were treated rather sharply in the Bridgewater case for giving their opinion a little hastily, and he thought they ought not to be allowed a less period than seven long years for considering this question. But then came the real question, whether a patent from the Crown to a Baron for his life gave him a right to sit in that House. He should not try to reconcile—which he might easily do—the authorities on this subject, which his noble Friend had a little perverted; but he thought it clear that this was a question of privilege which that House, and that House alone, ought to determine, and on which, he believed, the Judges would refuse to give an opinion. Certainly, if the learned Judges regarded what their predecessors had done, they would refuse to answer the questions which his noble Friend proposed to put to them, and would say it was for their Lordships to say 1134 whether the learned Baron ought to sit in that House or not. It resulted from this—that it was a question of privilege pending on the law and custom of Parliament, upon which the Judges had invariably refused to give any opinion. In Thorpe's case, in the reign of Henry VI., the Judges were consulted upon a question of Parliamentary privilege, and he held in his hands the record of what they said. The question arose in the time of that great Judge Chief Justice Fortescue, and he and his brethren acted unanimously—Chief Justice Fortescue and all the justices answered and said that they ought not to answer to that question, for it hath not been used aforetime that the justices should in anywise determine the privilege of this High Court of Parliament; for it is so high and so mighty in its nature that it may make law, and that that is law it may make no law; this is a question of their privilege; and the determination and knowledge of their privilege belongeth to the Lords of Parliament, and not to the justices.
The question was, whether the Speaker of the House of Commons could be taken in execution when the House was in Committee. He admitted that it was not a question for the admission of a Peer, for now for the first time a demand for the admission of a Peer was made when there was good ground for believing that the patent was in excess of the prerogative. In Talboy's case, in the reign of Henry VIII., the Judges were consulted as to the claim of a commoner, the husband of a Peeress in her own right, to be summoned and to sit in that House in her right. They answered—That the common law dealeth little with titles and customs of chivalry, but such questions had always been decided before the Constables and Marshals of England.
The King. [The LORD CHANCELLOR: Hear, hear!] And if the Judges would not answer to the King, à fortiori they would refuse to do so to a similar question put by that House. Lord Coke in his Institutes said—And as every court of justice hath laws and customs for its direction, some by the common law, some by particular laws and customs, so the High Court of Parliament suis propriis legibus et consuetudinibus subsistat. It is lex et consuetudo Parliamenti that all weighty matters in any Parliament moved concerning the Peers of the realm or Commons in Parliament assembled ought to be 1135 determined, adjudged, and discussed by the course of the Parliament, and not by the civil law, nor yet by the common laws of this realm. And this is the reason that Judges ought not to give any opinion of a matter of Parliament, because it is not to be decided by the common laws, but secundum legem et consuetudinem Parliamenti; and so the Judges in divers Parliaments have confessed.These authorities would prove to their Lordships that it was contrary to the invariable usages and constitutional practice of the country for the Judges to be consulted upon questions of Parliamentary privilege. Justice Blackstone approved—The practice of the Judges in refusing to give any opinion upon the law of Parliament, with which they are not supposed to be conversant.Chief Justice De Grey said—Courts of justice have no cognizance of the acts of the Houses of Parliament, because they belong ad aliud examenHad he not now said enough to show that these questions ought not to be given to the Judges, and that their Lordships ought to proceed upon the Report of the Committee of Privileges, and determine the question for themselves? Several of the Judges had set off for their circuits, and the others would very shortly be dispersed all over the country. With every respect for Lord Wensleydale, he doubted whether he had properly considered this business, or that he could be said to have given a legal opinion upon it. Their Lordships had been told that the Attorney General and the Solicitor General were the constitutional advisers of the Crown. But the noble and learned Lord upon the woolsack had admitted that he had consulted neither the Attorney nor the Solicitor General before this patent had issued. Lord Wensleydale was his (Lord Campbell's) private friend, and was highly honoured and beloved. In what situation was Lord Wensleydale now? In the earlier discussions on this subject noble Lords on the Ministerial bench were eager for despatch—"Let there be no delay," they said, and when it was proposed to make a further search for documents, they opposed the postponement of proceedings for a single day; and they complained of the hardship towards Lord Wensleydale, who was kept in uncertainty whether he was a Peer or not—whether he had a right to sit in that House, or whether he was eligible to sit in the House of Commons. Such a situation was a little unfair to him. He trusted their Lordships would be of opinion that this Motion ought to be negatived, 1136 and that their Lordships ought to proceed to the decision of this question.
THE LORD CHANCELLOR
said, he quite felt the difficulty involved in the last observation of the noble and learned Lord—the House, no doubt, were placed in some difficulty in respect of the proposal immediately under their consideration, by the circumstance that the Judges, or at least the greater portion of them, had left or were about to leave town for the purpose of going circuit. But unless he was greatly deceived, the course on which their Lordships were—let him be permitted to say it—somewhat recklessly hurrying was fraught with so many dangers, that, in spite of all the difficulties and inconveniencies which would attend delay, he begged of them to consider whether they would seriously proceed to a Resolution upon this subject without having first taken the best means of ascertaining the legality or the illegality of the step they were invited to sanction. The question, it was quite true, was not one merely of the legality or illegality of life peerages. Even if it should be established that to all intents and purposes the creation of life peerages was strictly legal, he should still be prepared to admit that those who advised the measure might be obnoxious to the censure of their Lordships. But the country must surely feel that they were proceeding recklessly, if, before they took any step in a matter of such grave importance, they did not avail themselves of every means in their power to ascertain what were the precise rights which such a patent as that legally conferred. His noble and learned Friend the Lord Chief Justice commenced his speech by some amusing suggestions as to the course the Judges would take if such a reference were made to them, and had attempted to show that it would be impossible for them to go into all the points raised by the question, and to define every privilege which was obtained by the holder of a patent of peerage. But the Judges might very properly confine themselves to an examination of the main results of such a patent. Now, one of the first questions which had been put by Parliament to the Judges after he had the honour of occupying a seat on the bench of a common law Court, was the occasion of the discussion of the Canada Clergy Reserves question. The Judges were requested to state whether under the words "Protestant clergy," there were included any ministers except ministers of the Episcopal Church, and if 1137 any others were included under those words, who those others were? It was obvious that it would have been not less difficult to supply an exhaustive answer to a question like that, than to give a complete answer to the question—What were the rights of a Peer for life? and, accordingly, in replying to the questions thus addressed to them, the Judges did not think it necessary to go exhaustively through the whole list of the persons comprised, as they thought, under the terms "Protestant clergy;" but they knew in what respect their Lordships required to be informed, and they framed such a general answer as they believed would be sufficient to guide the judgment of Parliament upon the point under its consideration; nor had he (the Lord Chancellor) the least doubt that those learned persons would again be actuated by the same spirit if this question also were referred to them. His noble and learned Friend (the Lord Chief Justice) had taken umbrage at the fact that the first of the present questions was, whether the patent was legal. His noble and learned Friend had scouted the notion of asking such a question. But was that the impression of his noble and learned Friend (Lord Lyndhurst), who first brought that subject under the notice of the House? And if it was, what did his noble and learned Friend mean by the statement in his Resolution—that the patent "purported" to create the right hon. Sir James Parke, Baron Wensleydale for life? It was pretty clear that his noble and learned Friend, at all events, had originally entertained considerable doubt as to the legality of the patent—a view of the case from which he was now willing to recede. The second of the questions set forth in the present Motion was, "What rights and privileges does such a grant confer?" Now, no doubt, the object of that question was to ascertain whether such a grant did or did not entitle the holder to sit and vote in that House. The noble and learned Lord (Lord Campbell) said that that question was one upon which the Judges could give no answer. But he (the Lord Chancellor) said it was a complete fallacy to suppose that that was a matter in which the Judges could not give any opinion; and that it was such a fallacy he believed he could prove to the satisfaction of their Lordships, or, at least, of all those Members of the House who were familiar with legal subjects. It was very easy to see that the Judges might come to a decision which would, for all 1138 practical purposes, conclusively dispose of that question. If, for instance, the Judges should say that a person who had obtained such a patent had no right to be tried by his Peers, and had no right to freedom from arrest, it would only be natural to conclude that in their opinion he had no right to sit and vote in that House. But if, on the other hand, the Judges should decide that he had a right to be tried by his Peers, and that he had a right to freedom from arrest, it would only be reasonable to hold that in their judgment he must be entitled to the other privileges of the peerage. At least it would throw a strong burden of proof on those who denied his right also to his writ of summons. He could state a case—not a probable one, he admitted, but still a possible one—in which the Judges might be compelled to adjudicate upon the question then at issue. By a Statute of 24 Geo. III. chap. 26, it was provided that if any Member of the House of Commons should become a Peer of Great Britain during the recess, the Speaker should, as soon as he should receive a certificate under the hands of two Members of the House that a writ of summons had been issued to summon such Peer to Parliament, issue his warrant within a certain time to the Clerk of the Crown to make out a new writ. Now, suppose that in such a case as that the Speaker wilfully refused to issue his warrant to the Clerk of the Crown, and in the case of a Member of the House of Commons created a Peer for life, and if he were on that ground indicted for a misdemeanor for disobeying the Act of Parliament, it was clear that the decision of the Judges upon the point whether or not he could be convicted on that indictment would involve the question whether the patent of the new Peer, so to speak, turned him out of the House of Commons by making him a Member of their Lordships' House. It was true that, in Thorpe's case, the Judges declined to interfere with the lex et consuetudo Parliamenti. But his point was, that if the Judges were called upon for their opinion on the subject then under consideration, they would not have to decide on the lex et consuetudo Parliamenti, for this was not a question of lex et consuetudo Parliamenti, but a question of lex Coronæ—a case that involved the rights of the Crown. The real question was, whether the Crown had a right to command the services of one of its subjects in the House of Peers, and 1139 whether, when Lord Wensleydale presented himself with his writ of summons, the House had a right to say that he should not take his seat among them. Surely, in a case like that, they could not say that the Judges could give no opinion on the question in dispute. In the case which had arisen in the reign of Henry VIII., to which his noble and learned Friend had referred, the question had been put by the Crown itself, whether a particular person had or had not a right to a writ of summons? The Judges answered that that was a question for the decision of the Earl Marshal; and as the Sovereign whom they were addressing was Henry VIII., he (the Lord Chancellor) did not wonder that they had manifested no anxiety to give an opinion on a point connected with his prerogative. But, in real fact, the case was made for him (Lord Cranworth); for it was a question which the Crown had to decide for itself, and the Judges only told the King that the custom was to refer such question to the Earl Marshal and other high functionaries. The noble and learned Lord then referred to Lord Coke's Fourth Institute. Lord Coke was quite consistent with himself. He had, no doubt, stated that questions relating to the lex et consuetudo Parliamenti were not questions for the consideration of the Judges; but the question whether a person had a right to come into Parliament was not a question of lex et consuetudo Parliamenti, but a question of the law of the land. On these grounds he hoped their Lordships would accede to the Motion of his noble Friend (Lord Glenelg); and that they would show to the country that which, let them give him leave to say, the country would not otherwise believe—that they were anxious, before deciding on a question of this importance, to ascertain what was the law with respect to it. He (Lord Cranworth) might feel an undue excitement upon the subject, and he might exaggerate its importance; but if the Motion which his noble and learned Friend (Lord Lyndhurst) had placed on the notice paper for that evening were carried, he protested that he believed it would be the most wilful, the most unprecedented, and the most unjustifiable invasion of the rights of another branch of the constitution that it had ever been his lot to witness. He believed it would be a proceeding for which there was no precedent, and in support of which no recognised principle of the constitution could be alleged. His noble and learned Friend had given notice that he 1140 meant to propose that their Lordships should not receive in that House one of Her Majesty's subjects, who might present himself at the bar with a writ from Her Majesty commanding him to give Her his services. Before they adopted such a Motion, he trusted they would well consider the matter, and as a foundation for such I inquiry accede to the proposal of his noble Friend, and ask the opinion of the Judges as to the legality of the patent, and the nature of the rights which it conferred.
THE EARL OF WINCHILSEA
said, he could not consent to allow precedents drawn from the time of the Plantagenets to be employed for the purpose of destroying the hereditary character of that House. No attempt had been made on the part of the Government to show that any life peerage, such as the one they were then considering, had been granted either in the time of the Tudors, or in the time of the Stuarts; and, above all, they had not attempted to show that any such creation had been made since the Revolution of 1688, which had consolidated the liberties of this country. He trusted their Lordships would not destroy the hereditary character of that House by giving every future Minister the right to create as many life peerages as he might find necessary for the purpose of carrying any particular measure. If this attempt were allowed to pass, what security would they have in case there should arise some arbitrary monarch, who, unlike Her present most gracious Majesty, did not reign in the affections of Her subjects—or some female Sovereign burdened with a connection with some foreign Prince little accustomed to our English rights and liberties—what security would they have, in such a case, that a blow might not be aimed at the independence of their Lordships' House, and so at the continuance or the stability of our institutions?
said, he should decline altogether following the noble and learned Lord (the Lord Chancellor), or the noble Lord who had made this Motion, into the question of legality, constitutional nature, or expediency involved in this matter. The question before their Lordships was of a very limited nature—it was simply whether they would or would not proceed into a Committee of Privileges and report on the subject referred to that Committee, without referring certain questions to the Judges, or would first take the advice of those learned counsellors? With respect 1141 to his noble and learned Friend (the Lord Chancellor), there was one word used by him more than once, and which he (Lord Brougham) was rather surprised to find uttered by him on this occasion, in connection with the unhappy predicament into which their Lordships had been he would not say drawn, but rather driven—and that was the word "reckless." Of all the words in all the dictionaries of the Saxon tongue, that word "reckless" was the last which he should expect to find in the mouth of any of the present Advisers of the Crown in speaking upon this measure of theirs. His noble and learned Friend, as well as his noble Friend the Lord Chief Justice, had reduced the question to this—whether the lex et consuetudo Parliamenti were involved in the creation of life peerages; and whether they could frame the questions in such a manner as to compel the Judges to answer as to points upon which the Judges on former occasions had wisely and consistently declined to reply? The question for their Lordships, in his view, was short, simple, and practical—whether, if they chose to ask the opinion, they could get an answer from the learned Judges? By the learned Judges, he assumed, was meant the whole fifteen Judges; but he would remind their Lordships, that fourteen of the fifteen—that was, all except the one who remained in town during the vacation—had either left town or were on the point of leaving it to go the circuits. Could they then get the benefit of these learned persons' assistance? It seemed to him they could not. The point was not like one of those ordinary matters in the practice of the Courts, which twenty-four hours' or forty-eight hours', or say a week's consideration, would enable any Judge to answer satisfactorily. It was a question full of difficulty. It was a question upon which, as they knew, there had been great difference of opinion among lawyers in that House and out of that House. In those circumstances, were they to administer interrogatories to the learned Judges, and call upon them within twenty-four or forty-eight hours to return an answer? If they desiderated the opinions of the Judges ever so much—if they had had ever so many or so good reasons shown them why they should call for that opinion—and his noble Friend's (Lord Glenelg's) reasons, by the way, had been very few and therefore very indifferent ones practically—in point of fact they could not obtain it. 1142 The Judges would say this was not an ordinary matter, and they wanted a few months for consideration; it was a matter which did not press, but might stand over until next Session. That would be the inevitable consequence of accepting the Motion of the noble Lord, and putting questions to the Judges. He was a little astonished to hear complaints of the rapid, wilful, and inconsiderate haste of the noble and learned Lord (Lord Lyndhurst), and those who agreed with him in pressing to have a decision on this great and important constitutional question. The noble Lord (Lord Glenelg) complained of their wishing to go on without consulting the Judges, and said they could not take too much precaution against falling into error; and his noble and learned Friend on the woolsack entered thoroughly into the same view—deprecating hasty proceedings, and expressing himself anxious for further inquiry and fuller investigation.
It might be consequently supposed that those two noble Lords, who considered a little delay did not signify compared with the evils of a hasty and erroneous judgment being arrived at, voted the other night for going into a Committee of Privileges; but, if he was not misinformed, though he could hardly believe it, both voted against proceeding further in a Committee of Privileges—one thought it better to proceed in a different way, and the other was for at once rejecting the Motion for inquiry without further consideration:—They would have decided without inquiry: and now, after the House had determined to inquire, had actually in part examined the subject, and were about to go into Committee in order to complete the inquiry, the noble Lords turned round and said, "We cannot go on with it; the best thing is to delay inquiring into the subject; it is too important to be speedily or rapidly settled." He (Lord Brougham) would not enter at length into the argument which had been used by his noble and learned Friend on the woolsack, that this was not a question of privilege, but a question of the prerogative of the Crown. It was true it was a question of prerogative; but it was of the prerogative trenching upon or infringing the privileges of the House, which the House not only could consider, but must consider. According to the argument of the noble and learned Lord on the woolsack, the Crown, ex mero motu, without writ or patent, could send down any person to that House; and if their Lordships refused 1143 to allow him to take his seat, producing no authority, it would be a question not of privilege, but of the prerogative of the Crown. Would the noble and learned Lord then say, "This is no question of privilege—it is a question of the prerogative of the Crown:—do not put yourselves into collision with your Sovereign?" So that a person having neither patent nor writ might be by the prerogative marched into the House, and the House must suffer him to sit and vote for fear of setting itself against the Crown. He (Lord Brougham) was quite surprised to hear such arguments from any lawyer, especially from a Whig lawyer. Now as to the Judges; no person could entertain greater respect for them than he did; no one was more anxious to have the benefit of their assistance; but there were difficulties in the way of calling upon them in the present instance; and the peremptory refusal of Lord Wensleydale to appear by counsel had aggravated those difficulties, for the Judges would be asked to decide without hearing the case argued, and he was sure that they would themselves be the first to declare that an opinion obtained from them in such circumstances would be worth but little. The Judges could not be invited to that House to listen to the conflicting arguments of noble Lords upon which their opinions were to be taken. He did not deny the competency of the House to call in the Judges, but he contended that to do so in the present instance would be most inconvenient, and they would be required to give an opinion without having the ordinary benefit of hearing the arguments upon the case. There were many objections to the Motion of the noble Baron, but he had only referred to one or two in addition to those mentioned by the Lord Chief Justice; they were, however, quite sufficient to justify him in opposing the proposition which was now made, and to which he hoped and trusted the House would not listen.
§ EARL GRANVILLE
I hope your Lordships will not be alarmed by the books before me, nor fear that I am about to trouble you at any great length. I can assure your Lordships I shall confine myself exclusively to the point before the House, although I must say I never heard a more unjust charge than was made by the noble and learned Lord who has just sat down against the noble Baron who made this Motion as to having wandered from the point. The noble Baron certainly touched 1144 upon many points, but they all bore strictly upon the subject before the House. I really think it is too much to expect, in discussing a matter of this kind, that my noble Friend should wholly ignore and put out of sight the point to which the Committee was about arriving, and he had an undoubted right to refer to a notice upon your Lordships' Minutes. The noble and learned Lord also said that four of the law Lords in that House were agreed in opinion against the opinion of the noble and learned Lord on the woolsack. I will go further than the noble Baron (Lord Glenelg), and say that upon the question of the legality of Lord Wensleydale's patent we have a right to claim a majority of the law Lords on our side. I agree that the noble and learned Baron opposite (Lord St. Leonards) has been consistent; he has never given any opinion upon the point, he has never, to my knowledge, given an opinion in favour of the legality of life peerages. My noble and learned Friend (Lord Lyndhurst) carefully abstained from saying anything upon it; and I am not surprised that he should have done so, for he acted in a judicial character only last year upon a question of a life peerage—a Scotch peerage—and the noble and learned Lord on that occasion put this question to the counsel, "It was usual formerly to grant life peerages in England; is it so in Scotland?" Now, it would have been irreconcilable with the character of the noble and learned Lord for consistency if he had got up now and said it was perfectly illegal. The noble and learned Lord who just addressed us (Lord Brougham) has expressed an inclination to believe that the patent is strictly legal. As to my other noble and learned Friend (Lord Campbell), he stated in his place as a Peer, in opposition to another plan which had been proposed, that it was within the prerogative of the Crown to grant life peerages. The noble and learned Lord also, in that delightful book which has been already quoted—the Lives of the Chancellors—in which in the life of Lord Eldon he gives a qualified approval as to the expediency in some cases of granting such peerages, has given his undoubted opinion that such is within the prerogative of the Crown. I think I have made out a case to show that implicit reliance cannot be placed upon the opinions of noble and learned Lords, and when they come to this House with a violent and unusual resolution your Lordships must be guided upon the point of legality 1145 or illegality by the opinions which they have already given. The noble and learned Lord (Lord Brougham) has expressed his surprise at the course which has been taken upon going into Committee. I must say I think it was a most undesirable step to take at all, and I own I experienced some slight consolation for the part we have taken when I found by chance this morning a protest in the Townshend case, signed by Lord Cottenham and other Peers now in the House. The first sentence of that protest is, "Because the Bill is an invasion of the prerogative of the Crown and the rights of the subject—of the prerogative of the Crown as adjudicating upon the titles of Peers without reference from the Crown, or leave given for that purpose." [Lord CAMPBELL: That was a question of illegitimacy.] I read this to show that Lord Cottenham objected to this particular Bill, which must have received the sanction of the House of Commons, and would have to be assented to by the Sovereign before passing—that it affected the power of the Crown, no reference by the Crown having been made, or leave given. The only conclusion I can draw is, that, agrave; fortiori, that noble and learned Lord would have objected to our resolving ourselves into a Committee of Privileges without the leave of, or a reference from, the Crown. I hope my noble and learned Friend the Lord Chief Justice will believe that in appealing from himself to himself, I do so to bring the weight of his learning and knowledge to bear upon the case I offer to your Lordships; but in a case heard in a court of law, the noble Lord, referring to the Banbury case, in which there was a charge of murder, and Lord Banbury pleaded in bar that he was a Peer and entitled to be tried by his Peers, "that plea," said the noble and learned Lord—"was held to be bad, and properly so, quia coram non judice—their Lordships not having had the case referred to them by the Crown, without which they had no jurisdiction." These are some consolations for our objections to the Committee. But I do feel strongly that bygones should be bygones, and, once being in Committee, we must all unite to try and come out as creditably as possible. An objection has also been made by the Lord Chief Justice that the precedents are against the Motion of my noble Friend. I must say, the precedents quoted by him were demolished by the noble and learned Lord on the woolsack, and the noble and learned Lord who followed him did not attempt any rejoinder. I 1146 think there are precedents the other way. In Cruise's Book of Dignities I find these cases:—Mr. Longville, in 1640, claimed the barony of Grey de Ruthyn. That case was referred to the House of Lords, and a question was put to the Judges with respect to the succession. Another case he might mention is the Clifton case, in which the Judges, on being consulted, declared that the said person, by virtue of the said writ of summons, and his sitting in Parliament accordingly, was a Peer and a Baron of this kingdom, and his blood thereby ennobled; secondly, that his said honour descended from him to Catherine, his sole daughter and heir, and successively after several descents to the petitioner as lineal heir of the said Lord Clifton; thirdly, that therefore the petitioner was well entitled to the said dignity. A third case is the barony of Fitzwalter, in 1668, when the two Chief Justices and Chief Baron Hall were consulted, and agreed that "the half blood was no impediment to the descent of a dignity to an heir general," with which opinion the King, who was present, being satisfied, Mr. Mildmay got the barony. These are all cases in point to prove that the Judges have been consulted upon questions of this kind. Reference has also been made to a Bill which enabled King William to delegate certain powers to his Queen during his absence abroad. This was referred to the Judges, and Chief Justice Holt decided that, without an Act of Parliament, the Sovereign could not exercise such powers. Surely, my Lords, this affords another reason why your Lordships should refer the present matter to the Judges. To my great astonishment, the noble and learned Lord (Lord Brougham) stated that, if your Lordships were to call upon the Judges to advise you upon the question, they could not do so, because they would be deprived of the assistance of counsel; and because, in M'Naghten's case, one of the Judges objected to the opinions of Judges being asked without their having an opportunity of hearing counsel. I was surprised to hear that, because I well remember that objection was overruled by every one of the remaining Judges; and Lord Brougham, Lord Campbell, Lord Cottenham, Lord Wynford, and the Lord Chancellor, laid it down that the House of Lords had an undoubted right to have the opinions of the Judges on abstract questions of existing law. The noble and learned Lord also alluded to the delay which would be occasioned 1147 by referring the matter to the Judges, and, in doing so, I thought he proved more than was necessary for his case. He referred to the circuits, and to the terms and vacations with which the noble and learned Lord is much more conversant than I am, and he endeavoured to show that it would be impossible to get the opinion of the Judges during this Session. Surely it is idle to urge such an argument, which would be a bar to your Lordships ever putting any question to the Judges. When the noble and learned Lord says that it ought to take the Judges seven years to discuss the question, it is due to the noble and learned Lord to suppose that he spoke it humorously. But, my Lords, I do think that if we are able in seven days to arrive at an opinion upon the matter, notwithstanding that the opinions of noble and learned Lords are inconsistent with one another, and, in some instances, even inconsistent with themselves—if within that period we are expected to dispose of so great a question of jurisdiction and prerogative, surely the Judges might reasonably be expected to be able to come to a decision within the period of the Session. The noble and learned Lord has said that Her Majesty's Government, in the first instance, wanted to have the question decided without going into Committee at all, and that we are, therefore, very inconsistent in wishing to interpose any delay. But I think, my Lords, the course we are pursuing is perfectly justifiable. We ourselves entertain no doubt about the legality of the patent and of the writ issued by the Queen. But when your Lordships overrule us, and bring us into a Committee, and when you propose to adopt a course which is utterly unusual, and altogether without precedent, I do not think you have any right to turn upon us and accuse us of causing delay when we show a desire that your Lordships should seriously deliberate upon the question thus brought before you, and use every means in your power to come to a satisfactory arrangement. My Lords, are there no points raised of importance? The noble and learned Lord says that the first question proposed to be asked the Judges was useless, because he could assure your Lordships that no doubt exists as to the Queen having the power to make a Peer by patent for life. But, as the noble and learned Lord has on another occasion expressed a different opinion, it is possible that he may reconsider the more recent opinion he has pronounced, and at 1148 some future time given an opinion diametrically opposite. Therefore I should like to have the opinion my noble and learned Friend has this evening expressed confirmed by the learned Judges of the land. This, to me, my Lords, appears to be a point of great importance; for, although the Queen has the power to create a Peer for life, yet it may be argued and indeed decided in the course of this Session that such a dignity does not confer a right to sit in this House. Yet, my Lords, in the Third Report of the Lords' Committee on the Dignity of the Peerage—a Report known to have been drawn up by that great lawyer, Lord Redesdale—it is stated that—Whatever may have been formerly the constitution of the legislative assemblies of the realm, the dignity of Peer of the realm, from the time the present constitution of those assemblies was clearly established until the union of England and Scotland, gave to the possessor of that dignity, as one of its inherent rights, the character of a Member of such assemblies.If the Judges should confirm this opinion, we should then have not only their judgment, but the opinions of Lord Redesdale and my noble and learned Friend; so that the case would appear to be absolutely decided. I will refer your Lordships to a case which I met with very providentially. It was first brought to notice by the noble and learned Lord who began this debate, and nothing can be more fair than to show what was the result of it. The Peers, having refused to take the advice of the Judges, and having decided quite contrary to the law, were obliged, seventy years after, to call in the assistance of the Judges, and they then gave quite a different decision. I hold in my hand a book of some authority. I am going to quote Mr. Hargrave—a passage this time really written by him, and not a note which he never wrote and never saw. It refers to the case of Sir Charles Knollys, who claimed the Banbury peerage. Mr. Hargrave says—Though this claim was finally rejected, yet it appears that a great number of Peers—twenty of them—protested against the decision. Such a circumstance goes far to induce the great probability that had it not been refused to hear the Judges the claimant would have had their opinion both on the facts and the law of the case in his favour.My Lords, I now come to another question. I certainly do not hold the doctrine that this House is servilely to support the prerogative of the Crown in whatever way 1149 that prerogative may be exercised; but I do say, that when you are dealing with a prerogative of the Crown in a manner that goes to the very root of that prerogative, and when I consider that in the exercise of your own privileges in questioning that prerogative you are taking an unprecedented and unusual step, I think that, although the act itself may be right, and may be required by the necessity of the case, yet it is decent, with regard to the Crown, it is respectful to the other House of Parliament, and it is showing due consideration to the feelings of the country, that, before coming to so strong a decision, you should make it appear that you have neglected no single means of informing yourselves upon the law affecting the question. I will call to the attention of your Lordships a case in which your Lordships' predecessors took great steps with regard to the privileges of your Lordships' House, and with a view to strengthen and extend those privileges. There is hardly any one of your Lordships who will not agree in thinking that it was fortunate they were defeated in the attempt. I allude to the peerage question. It passed this House twice, but was defeated in the House of Commons by the efforts of that great and sagacious statesman Sir Robert Walpole. The House may sometimes take an erroneous view of its own interests. Your Lordships have been entreated not to prevent the House coming to a decision by any unnecessary delay; but, my Lords, whatever may be the evil of delay, even for a short duration, it is not to be compared with the evil Denbigh of having hastily, and without the fullest and maturest deliberation and information, come to a decision upon so important a question. I shall, therefore, vote with the greatest satisfaction for the Motion of my noble Friend, and conclude by requesting your Lordships to support the proposition for referring this matter to the Judges. On Question, their Lordships divided:—Content, Present 62; Proxies 49–111. Not Content, Present 97; Proxies 45–142: Majority 31.
§ Resolved in the Negative.1152
|List of the CONTENT.|
|Enfield||Saye & Sele|
|Sydney||Stanley of Alderley|
|Denbigh||Howard de Walden|
|Morley||Stuart de Decies|
|Portsmouth||Vaux of Harrowden|
|List of the NOT CONTENT.|
|Lonsdale||Colville of Culross|
|Hamilton and Brandon||Poulett|
|Leven and Melville||Northwick|
|Strafford, Earl||Glengall, Earl|
|Clifden, Viscount||Cadogan, Earl|
|Grafton, Duke||Digby, Earl|
|Lovelace, Earl||De Ros, Lord|
|Ribbesdale, Lord||Ely, Marquess|
|Auckland, Earl||Waterford, Marquess|
|Leinster, Duke||Middleton, Lord|
|Hereford, Bishop||Warwick, Earl|
|St. Asaph, Bishop||Hopetoun, Earl|
|De Freyne, Lord||Crofton, Lord|
|St. David's, Bishop||Mountcashel, Earl|
|Suffield, Lord||Rutland, Duke|
|Elphinstone, Lord||Talbot, Earl|
|Durham, Bishop||Rosslyn, Earl|
|Clarendon, Earl||Cloncurry, Lord|
|Ripon, Earl||Northumberland, Duke|
|Conyngham, Marquess||Bayning, Lord|
|Norwich, Bishop||Gloucester, Bishop|
|Bedford, Duke||St. John, Lord|
|Waldegrave, Earl||Cathcart, Earl|
|Spencer, Earl||Exeter, Marquess|
|Carlisle, Earl||Aylesford, Earl|
|Kinnaird, Lord||Ranfurly, Earl|
|Fortescue, Earl||Mayo, Earl|
|Carew, Lord||Downshire, Marquess|
|Foley, Lord||Exmouth, Viscount|
|Belhaven, Lord||Douglas, Lord|
|Hatherton, Lord||Dartmouth, Earl|
|Leigh, Lord||Willoughby de Broke|
|Strangford, Viscount||Stamford, Earl|
|Durham, Earl||Willoughby de Eresby|
|Stourton, Lord||De Lisle, Lord|
|Petre, Lord||Manvers, Lord|
|Dormer, Lord||Bantry, Lord|
|Rivers, Lord||Cleveland, Duke|
|Chichester, Earl||Richmond, Duke|