HC Deb 21 February 1840 vol 52 cc435-45

Mr. F. Maulemoved, "That the Speaker do issue his warrant to the Clerk of the Crown, to issue a new writ for the election of a Commissioner for the county of Perth, in the room of Lord Stormont, now Earl of Mansfield and Viscount Stormont in the kingdom of Scotland."

Mr. Pringle

wished to know whether it consisted with the knowledge of the hon. Member, that Lord Stormont bad received a writ of summons to the House of Lords?

Mr. F. Maule

replied, that it did not consist with his knowledge, that Lord Stormont had received a writ of summons to the House of Lords, but it consisted with his knowledge, that he was now Viscount Stormont, in the kingdom of Scotland, and, according to the articles of Union, he could not sit for a Scotch county.

Sir W. Follett

recollected that a similar case had occurred since he had been in Parliament—the case of the present Earl of Scarborough. A writ was moved far on the death of his father, but no writ of summons had been issued, and the motion was withdrawn. This appeared to him to be a similar case. There was no proof that Lord Stormont had become either a Peer of Scotland or a Peer of England; and until a nobleman had received a writ of summons, it was not usual to move a new writ for a place which he represented.

Mr. F. Maule

was sorry to interfere with so high an authority as the hon. and learned Gentleman; but he apprehended Lord Stormont would not receive a writ of summons; he would take his seat in the House of Lords as a Scotch Peer without any summons, and he knew of no reason why so large a district as Perth should remain unrepresented.

Sir J. Graham

said, the circumstances of this case were very clear. The Earl of Mansfield died on Tuesday last, and was yet unburied. A writ of summons had not yet issued, and Lord Stormont could not take his seat as a Peer of the British Parliament till he had received a writ of summons. That writ of summons could only issue on proof of his legitimacy, and the case stated by his hon. and learned Friend, the last case in which the question arose, that of the Earl of Scarborough, removed all doubt upon that ground. Unless, therefore, the hon. Member was prepared to state, on his own knowledge, that the writ of summons had issued, the time had not yet arrived for moving the new writ. With regard to his being a Peer of Scotland, he imagined that before he could Vote as a Peer of Scotland, he must be served heir to his father. There must be proof in relation to the British Peerage as well as the Scottish. Lord Stormont's father was yet unburied, and no such proof had been adduced. The hon. Gentleman was not in a condition to state, that a writ of summons had been issued, or that a service had been made upon the heir. Upon this ground, therefore, he submitted that it would be premature to issue the writ at present.

The Lord-Advocate

said, it was perfectly clear, according to the law of Scotland, that Lord Stormont was now a Scotch Peer, no service being necessary. Upon the death of a father, the son instantly became a peer, and the present Lord Stormont was, therefore, a Scotch Peer in the room of his father, independently of any service or proof of legitimacy.

Sir E. Sugden

said, the question could only he decided by proper evidence. Was the House to have that evidence or not? If the law of Scotland furnished no evi- dence in this particular case, the House must fall back upon the English Peerage, and call for the customary proof of heir-ship.

The Attorney-General

said, it appeared, from what had fallen from the right hon. Baronet, the Member for Pembroke, that the Earl of Mansfield was dead, and there was no doubt that Lord Stormont, the late Member for Perth, for so he must call him, was his eldest son and legititimate heir. But the House must consider the case as if the late Earl had only been Lord Stormont; they were to dismiss from their minds, that he was Earl of Mansfield also. Well, then, being only Viscount Stormont, there was no doubt that his eldest son and heir, now Viscount Stormont, being a Scotch Peer, was disqualified from sitting in the House of Commons. The seat, therefore, was vacant. There was no Member now for Perthshire.

Mr. Goulburn

said, the hon. and learned Gentleman had made an assumption first, and, then, upon that assumption, he proceeded to settle the whole case. There was no question about the son being heir to his father's title in this particular instance. If the principle laid down by the hon. and learned Gentleman were adopted, the House must be prepared to act upon it in every future case. The House had guarded against any error in the case of English peers by requiring that a writ of summons should be issued before any vacancy be declared. He thought, upon a case of this importance, where they were establishing a precedent to guide the House hereafter, it was inexpedient that they should come to a hasty decision. In all these cases it was desirable that precedents should be examined, and he should therefore move, that the debate be adjourned to Monday next.

Mr. F. Maule

should certainly oppose that motion, and for this reason, that the House had the opinion of the Lord-Advocate most distinctly delivered upon a point of Scotch law. That opinion was, that, by the law of Scotland, Lord Stormont was now a Scotch peer, and, by the Act of Union, he could no longer be a Member of that House; if he should exercise his privilege, as Member for Perthshire, he would subject himself to a penalty. Under those considerations then, and feeling that it would not be fair that this great county should be without its voice in that House at this particular crisis, he should persist in his motion that the writ be issued.

Sir R. Peel

would support the motion for an adjournment. The position of a Scotch peer in his opinion very much resembled that of an Irish peer sitting for an Irish constituency, and inheriting a title from his father. In that case, he was disqualified from silting, not in the House of Commons generally, but for any Irish constituency; and it was important to ascertain the course pursued on such a vacancy taking place—whether the Speaker issued his writ immediately, if the case occurred during the recess, or waited until some evidence had been laid before the House on its re-assembling. The House should remember then that they might establish now a precedent not only for Scotland but for Ireland. There was no representative for Perth yesterday or the day before, but it was not thought necessary, on the death of the late Earl of Mansfield being known, that a race should be run in order to move the writ. The proposal was not that they should suspend the writ indefinitely, but that the debate should be adjourned until Monday next, in order that they might consider what the precedents were. If the precedents were in its favour, let the writ be issued on Monday next, but before it was decided upon, was it not decent at least to have the opportunity of eight-and-forty hours' consideration before they established a precedent which was to govern them in future?

Mr. R. Steuart

said, the present case was not analogous to that of an Irish peer. The difference was, that an Irish peer was not prohibited from sitting in the House of Commons, because he might sit for an English constituency, whereas a Scotch peer could not sit in the House of Commons at all. He feared there was something more than a mere wish to prevent a precedent being established on the other side. It was utterly impossible that any precedent could be established different from that which had repeatedly been established before. It being admitted that the Earl of Mansfield was dead, and that his son was a Scotch peer, ha did say, that the House had a right to suppose there was something yet undisclosed, which induced hon. Members on the other side to come forward and prevent the writ being issued.

Mr. Goulburn

would inform the hon. Gentleman upon what ground he opposed the motion. He had been a Member of that House for some years, and he remembered that in the case of Lord Berkeley a motion was brought forward by some hon. Gentlemen who now occupied the other side of the House, that Lord Dursley should vacate his seat as Member for Glocester, because he had become Earl of Berkeley. He (Mr. Goulburn) opposed it on the same ground that the present motion was opposed—namely, that there was no evidence of the fact before the House. With the recollection, then, of the circumstances of the case in his mind, he wished to be cautious of acting upon his own judgment without some proof of the fact in dispute.

Mr. Shaw

said, that on the death of Lord Farnham, Mr. Maxwell, who represented the county of Cavan, succeeded to the title, and although Lord Farnham had died during the recess, the vacancy was not declared, nor was a new writ issued, until the meeting of Parliament, because, as no writ of summons was issued to an Irish peer, the Speaker had no official information on the subject. Lord Farnham vacated the seat, but it remained vacant until the House was satisfied that he was a peer of Ireland.

Sir R. H. Inglis

rose for the purpose of calling the attention of the House to the case mentioned by his right hon. Friend the Member for the University of Cambridge. (The hon. Gentleman read from the journals an account of the proceedings of the House on the 10th of January, 1811, on the motion that a new writ be issued for Gloucestershire, in the room of Lord Dursley, who had succeeded to the title of Earl Berkeley.) The Speaker on that occasion had issued his writ; but it had turned out afterwards that the allegation on which he had proceeded in so doing was incorrect, and the other House of Parliament, had decided, that that gentleman was not Earl of Berkeley, and he had never sat there by that title. Now, as no hon. Gentleman could state it as a fact, from his own knowledge, that Viscount Stormont was now a Peer, it would be more consistent to consent to the adjournment.

Mr. Hume

asked if the hon. Gentleman meant to state to the House that there was any doubt as to the legitimacy of Lord Stormont?

Sir R. H. Inglis

had cautiously abstained from making any reference to the grounds of the decision to which he had alluded.

Mr. Hume

said, the points of that decision were known to every one, and therefore he was justified in asking the question. It was because the hon. Baronet had not stated what were the grounds of his own opposition to the motion, that he thought it was fit the House should know them.

Sir W. Follett

could assure those hon. Gentlemen opposite who attributed motives to those who sat on the Opposition benches, that he was totally ignorant of everything connected with the local politics of Perthshire. He was sure it was not necessary that he should make any allusion to the observation of the hon. Member for Kilkenny. It was preposterous to suppose, that they considered Lord Stormont would not be Earl of Mansfield of England, and Viscount Stormont of Scotland. His only object was, that the House should proceed according to precedent. The question was, whether the House ought not to proceed in the case in the usual ordinary and proper course, and there was no necessity at all to make it a personal question. It had been said that there was no doubt whatever that Lord Stormont in Scotland was Earl of Mansfield in England, but that was not the only consideration which the House should look to. In the case of the Earl of Scarborough the writ had been suspended till the usual forms were gone through. It was said that upon the death of a Scotch peer his son immediately became a peer. Such was the case with regard to the eldest son of an English peer. But it was not the practice to issue a writ until the House had some proof that he had become a peer; a mere statement or supposition was not considered sufficient to warrant the issuing of the writ. He would not pretend to dispute the law of Scotland, as laid down by the Lord-Advocate, but he still thought that the House should be guided on the matter by precedent, and that they should pursue the usual course on such occasions. The Lord-Advocate could not, he believed, show a precedent of a writ having been issued immediately on the death of a Scottish peer; and if he could not do that, surely the debate ought to be adjourned. Nobody, he believed, on the Opposition side of the House had the slightest motive in taking the line they had done, but to prevent the House from proceeding irregularly, and without due deliberation.

Mr. F. Maule

said, that hon. Gentlemen opposite had not denied that Lord Stormont was now a Scottish peer, and that if he took his seat in the House he would be liable to a penalty.

Mr. J. Jones

thought the House was justified in requiring something more than the mere assertion that Lord Stormont had succeeded to the title of his father. He believed that it was usual to serve the heir of a Scotch peer before he was considered duly possessed of the title, though there was no doubt of his legitimacy. At all events the writ ought to be delayed until the House was perfectly satisfied, as in all other cases.

Mr. O'Connell

did not think the House could be in possession of any more facts on a future day than they were at present. He understood that there was no doubt that Lord Stormont was Lord Stormont in Scotland at the present moment; and being so, he could not sit in that House. Why wait, then, till Monday? If hon. Gentlemen opposite wanted time to get a candidate for Perthshire, let them say so.

Lord J. Russell

said, it appeared to him that a new writ should be issued if the person served as heir to a deceased peer was not able to sit in the House. That course had been pursued very lately in the case of Lord Clive, who had become Earl of Powis. It was also adopted in other cases. The usual mode had been to make a statement, and upon which the House proceeded to issue the writ. The question now was, whether the House was satisfied with the statement of the hon. Member who had moved this writ. If any hon. Gentleman would say that he considered Lord Stormont had not become a peer, that he was not Viscount Stormont in Scotland, that he was not Earl of Mansfield in England, and therefore not unable to do his duty in that House, then he would admit that in issuing the writ they would go contrary to former precedents. But he had not heard any such statements made. He had not heard the slightest doubt expressed that Lord Stormont had become a Peer of Scotland. His hon. Friend near him (the Lord-Advocate), who was acquainted with the law and practice of Scotland, had said that there was no positive necessity that the heir should be served. There must be some other ground, then, upon which to controvert the usual practice. The case of Lord Dursley had been alluded to. Now suppose that, with regard to Lord Stormont, there was question about his right to succeed to the title, and two years were allowed to pass over before any decision was given, would the House be prepared to agree that the county of Perth should remain without a Member all that time? Should such a case occur, it would no doubt require considerable consideration before the House could settle what course should be adopted. But that was not the case at present before the House. He was, therefore, of opinion that the usual precedents should be followed.

Sir W. Rae

said, there was no doubt of Lord Stormont's right to succeed to the titles of Earl of Mansfield in England, and Viscount Stormont in Scotland. The question was, whether some evidence should not be adduced in the House of the fact. There was no doubt of the fact in Scotland. But he denied that the heir of a deceased Peer could do any act without first proving his legitimacy. He could not touch any part of the estate, unless he had been served as heir; and upon the election of the sixteen Peers of Scotland, he must produce a certificate to show that he had been served as heir, besides the general knowledge of the fact. Under all the circumstances, it would be the most regular and consistent course to adjourn the debate.

The Lord-Advocate

said, that when the eldest son of a Peer became entitled to a Peerage, it was not necessary for him to take any proceedings for the purpose of enabling him to exercise any of the rights or privileges of the Peerage. If the House were satisfied that a vacancy had taken place in the representation of Perthshire, a new writ ought immediately to issue.

Sir G. Clerk

observed, that the House of Commons committed a great blunder in the year 1811, in the course which it adopted with reference to the new writ for Glocester, when they assumed that the Member by whom that place was represented had succeeded to a Peerage. From that time forward the House acted upon a stricter rule with respect to the issue of writs, for they required that some evidence should be laid before them of the existence of a vacancy, and no longer took the matter for granted upon the mere statement of the individual Member who moved for the new writ. There was a case quite in point which had not yet been referred to—namely, that of the Earl of Wemyss. When that nobleman succeeded to his father's title and estates, his eldest son, then Viscount Elcho, was Member for the Haddington district of burghs. Before the Scotch Reform Bill was passed, it was incompetent for the eldest son of a Scotch Peer to represent an English constituency. In that case a new writ was moved for in the room of Lord Elcho; some objection was made at that time, as on the present occasion; the matter was postponed for a few days, and then the writ was issued there was another case in point, and that was the case of the Earl of Beverley. There existed no doubt as to the legitimacy of his eldest son (Lord Louvaine, then sitting for the borough of Berealston). On the death of his father a new writ was moved for in the room of Lord Louvaine, on his becoming the Earl of Beverley, and an objection was made at the time, because Lord Louvaine was known to be at Nice, and could not be supposed to be cognizant of his father's death. The Speaker was appealed to, and in consequence of the view which he took of the question, the House refused to issue the writ till some communication could be opened with Lord Louvaine, and in consequence of this the representation of Berealston was kept open for a considerable time. The House in that and in other cases exercised due caution, and required something more than the mere statement made in the House. He conceived that there was no distinction between the present and the Beverley case, and upon these grounds he held that the further consideration of the question ought to be adjourned till Monday.

Viscount Howick

said, that when a Member of that House succeeded to a British Peerage, the House required evidence of the writ of summons. It might be desirable to have some such proof in the case of Scotch and Irish Peerages; but no hon. Gentleman on the other side had yet informed the House what the practice was. Did the House, or did it not, require formal evidence as to Members succeeding to Scotch or Irish Peerages? If that were the practice, he thought it hardly possible but that hon. Members on the other side must be aware of it; but neither the present Lord-Advocate nor the late Lord-advocate appeared to know any- thing of the matter which could at all assist the House; neither they nor the hon. Member for Dublin appeared to know what was the nature of the evidence which the House required. As the duty of the House upon an occasion such as the present, was not to improve the law, but to adhere to the existing practice, whatever it might be, he should, though with some doubt, oppose the motion of adjournment.

Lord Stanley

said, that the reasons given by the noble Lord who spoke last were such as ought rather to induce him to vote for than against postponement. All that the opponents of the motion asked was, that the question should stand over till the next day the House met, in order to ascertain what the rule was with respect to Scotch and Irish Peerages. Every one was aware that the House, in the case of English Peerages, required technical proof that a vacancy had occurred. Now, with respect to the present case, they did not really know what the practice was, and they had not had time to discover. They did not know whether any proofs or preliminary proceedings were necessary or not in the case of a Scottish Peerage, and he must say that it was rather too much of the noble Lord opposite to require that they should have at their fingers' ends every case upon the subject, when not one on that side of the House had the least idea that such a question would be mooted. It could never have been supposed, that within three days of the death of Lord Mansfield, such a motion would be made in the House of Commons. It was a proceeding unheard of. The recency of the event might be some apology for those who asked for adjournment, not being prepared with precedents, but it was that very circumstance which rendered it so exceedingly inexpedient to adopt the motion. If the hon. Gentleman, the Under Secretary for the Home Department, had brought forward precedents, showing the practice to be such as justified the motion, then the hon. Gentleman should at once have his vote. If the precedents and practice were in favour of the motion, it would not be opposed; but, on the other hand, if the motion were forced forward in this manner, he and his friends would hold themselves justified in pressing the amendment. They were entitled to be made acquainted with the sound and solid grounds upon which they were to be called on to issue this writ, contrary to the practice as regarded English Peerages, and he must say, that the rejection of the amendment would go to establish a most inconvenient precedent.

The House divided:—Ayes 165; Noes 136—Majority 29.

List of the AYES.
A'Court, Captain Hope, hon. C.
Arbuthnot, hon. H. Hope, H. T.
Archdall, M. Hope, G. W.
Ashley, Lord Hotham, Lord
Bailey, J. Houldsworth, T.
Baillie, Colonel Hurt, F.
Baring, hon. W. B. Ingestrie, Viscount
Barneby, J. Inglis, Sir R. H.
Barrington, Viscount Irving, J.
Bentinck, Lord G. Jackson, Sergeant
Blackburne, I. James, Sir W. C.
Blackstone, W. S. Jermyn, Earl
Blakemore, R. Johnstone, H.
Bolling, W. Jones, Captain
Broadley, H. Kemble, H.
Broadwood, H. Knatchbull, right hon. Sir E.
Bruce, Lord E.
Burrell, Sir C. Knight, H. G.
Chute, W. L. W. Knox, hon. T.
Clerk, Sir G. Law, hon. C. E.
Clive, hon. R. H. Litton, E.
Cochrane, Sir T. J. Lockhart, A. M.
Calquhoun, J. C. Lowther, J. H.
Conolly, E. Lygon, hon. General
Corry, hon. H. Mackenzie, T.
Dalrymple, Sir A. Mackinnon, W. A.
Darby, G. Mahon, Viscount
D'Israeli, B. Maunsell, T. P.
Douglas, Sir C. E. Meynell, Captain
Duffield, T. Miles, P. W. S.
Dugdale, W. S. Milnes, R. M.
Duncombe, hon. W. Mordaunt, Sir J.
Duncombe, hon. A. Ossulston, Lord
Eaton, R. J. Packe, C. W.
Egerton, W. T. Pakington, J. S.
Eliot, Lord Parker, R. T.
Farnham, E. B. Patten, J. W.
Fellowes, E. Peel, rt. hon. Sir R.
Filmer, Sir E. Pemberton, T.
Forrester, hon. G. Perceval, Colonel
Freshfield, J. W. Perceval, hon. G. J.
Gaskell, J. M. Planta, right hon. J.
Gladstone, W. E. Plumptre, J. P.
Goddard, A. Polhill, F.
Goulburn, rt. hon. H. Powell, Colonel
Graham, rt. hn. Sir J. Praed, W. T.
Grant, F. W. Price, R.
Grimsditch, T. Pringle, A.
Halford, H. Rae, rt. hn. Sir W.
Hamilton, C. J. B. Reid, Sir J. R.
Hamilton, Lord C. Richards, R.
Hardinge, rt. hn. Sir H. Rickford, H.
Henniker, Lord Rolleston, L.
Herbert, hon. S. Round, C. G.
Herries, rt. hon. J.C. Rushbrooke, Colonel
Hogg, J. W. Sandon, Viscount
Holmes, hon. W. A. Scarlet, hon. J. Y.
Holmes, W. Shaw, right hon. F.
Sheppard, T. Tyrell, Sir J. T.
Sibthorp, Colonel Vere, Sir C. B.
Smith, A. Verner, Colonel
Smyth, Sir G. H. Vivian, J. E.
Somerset, Lord G. Walsh, Sir J.
Sotheron, T. E. Wilbraham, hon. B.
Stanley, E. Wilmot, Sir J. E.
Stanley, Lord Wood, Colonel
Sugden, rt. hn. Sir E Wood, Colonel T.
Sutton, hon. J. H. T. M TELLERS.
Teignmouth, Lord Baring, H. B.
Thomas, Colonel B. Follett, Sir W.
List of the NOES.
Adam, Admiral Greig, D.
Aglionby, Major Grey, rt. hon. Sir C.
Alston, R. Grey, rt. hon. Sir G.
Anson, hon. Colonel Guest, Sir J.
Archbold, R. Hall, Sir B.
Bainbridge, E. T. Harland, W. C.
Baines, E. Hastie, A.
Baring, right hn. F. T Hawes, B.
Barnard, E. G. Heathcoat, J.
Bellew, R. M. Hector, C. J.
Berkeley, hon. H. Hill, Lord A. M. C.
Bernal, R. Hindley, C.
Bewes, T. Hobhouse, T. B.
Blackett, C. Hodges, T. L.
Blake, M. J. Horsman, E.
Bodkin, J. J. Howard, F. J.
Bowes, J. Howard, P. H.
Bridgeman H. Howick, Viscount
Brocklehurst, J. Hume, J.
Brotherton, J. Humphery, J.
Buller, C. Hutton, R.
Busfield, W. James, W.
Byng, G. Labouchere, rt. hn. H.
Callaghan, D. Lambton, H.
Campbell, Sir J. Langdale, hon. C.
Campbell, W. F. Langton, W. G.
Clay, W. Loch, J.
Collier, J. Lushington, C.
Corbally, M. E. Lushington, rt. hn. S.
Craig, W. G. Lynch, A. H.
Curry, Sergeant Macaulay, rt. hn. T. B.
Dalmeney, Lord M'Taggart, J.
Dashwood, G. H. Martin, J.
Denison, W. J. Maule, hon. F.
Dennistoun, J. Melgund, Viscount
Divett, E. Morpeth, Viscount
Duff, J. Morris, D.
Duke, Sir J. Muntz, G. F.
Duncombe, T. Murray, A.
Dundas, Sir R. Muskett, G. A.
Easthope, J. Nagle, Sir R.
Elliot, hon. J. E. Noel, hon. C. G.
Ellice, Captain A. O'Callaghan, hon. C.
Ellice, right hon. E. O'Connell, D.
Ellis, W. O'Connell, J.
Evans, Sir De L. O'Connell, M. J.
Evans, W. O'Conor, Don
Ewart, W. O'Ferrall, R. M.
Fleetwood, Sir P. H. Ord, W.
Gishorne, T. Oswald, J.
Gordon, R. Paget, F.
Grattan, J. Palmerston, Viscount
Greg, R. H. Pattison, J.
Pechell, Captain Stock, Dr.
Phillips, Sir R. Strutt, E.
Philips, M. Style, Sir C.
Philips, G. R. Tancred, H. W.
Pigot, D. R. Thornley, T.
Pinney, W. Troubridge, Sir E. T.
Ponsonby, C. F. A. C. Tufnell, H.
Ponsonby, hon. J. Turner, E.
Protheroe, E. Turner, W.
Pryme, G. Verney, Sir H.
Redington, T. N. Vigors, N. A.
Rice, E. R. Villiers, hon. C.
Roche, E. B. Vivian, J. H.
Roche, W. Wakley, T.
Russell, Lord J. Walker, R.
Rutherfurd, rt. hn. A. Wall, C. B.
Salwey, Colonel Wallace, R.
Sanford, E. A. Warburton, H.
Scrope, G. P. Ward, H. G.
Seymour, Lord White, A.
Sheil, rt. hon. R. L. Wilbraham, G.
Shelburne, Earl of Wilde, Sergeant
Smith, J. A. Williams, W.
Smith, G. R. Williams, W. A.
Smith, R. V. Wood, G.
Somerville, Sir W. M. Worsley, Lord
Standish, C. Wrightson, W. B.
Staunton, Sir G. T. Wyse, T.
Steuart, R.
Stewart, J. TELLERS.
Stuart, Lord J. Parker, J.
Stuart, W. V. Stanley, E. J.
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