HL Deb 12 February 1856 vol 140 cc591-611

Committee for Privileges to examine and consider the copy of the Letters Patent purporting to create the Right Honourable Sir James Parke, Knight, a Baron of the United Kingdom for Life (presented to the House on Monday the 4th instant), and to report thereon to the House.

Then the Committee proceeded to consider the matter of the said reference:

LORD LYNDHURST

My Lords, I was asked the last evening by my noble and learned Friend the Lord Chancellor, and by a noble Earl (Earl Grey), what course I intended to pursue in moving for this Committee. I declined then to answer those questions, because I thought it might lead to unnecessary discussion, and also because I thought it quite obvious to all persons who had paid attention to the proceedings that there was only one course which could possibly be pursued. I laid down these propositions: First of all, I stated that the force and obligation of long-continued usage was one of the principles of our constitution, and particularly that part which relates to the privileges of Parliament. I further stated that for the last 400 years no instance had occurred in which a commoner had been called up to this House to take his seat by virtue of a patent creating merely an estate of dignity for life. I considered two or three solitary instances which occurred at a remote period in turbulent and very disorderly times, before the constitution had assumed anything like its present shape and character, and before the Petition of Right, in the reign of Charles I., and more especially before the Bill of Rights at the time of the Revolution, could not justify any attempt to alter the hereditary character of this House, and that any attempt to do so would be inconsistent with the principles of the constitution. The course, therefore, which I am now about to pursue is, to prove and establish the facts which I then stated, and to call to your Lordships' bar witnesses to produce the records referred to in support of that argument; and I shall further request that the records, or those necessary for the elucidation of the subject, be laid on the table of the House, and that they be translated and printed for the use of members of this Committee, and of the other House of Parliament. My Lords, I have further to state, as far as relates personally to myself, it is a little hard upon me, sitting for many years in your Lordships' House, that the labour of searching into details should fall upon myself. I think it particularly hard, when I consider that the noble and learned Lord has a host of persons—I do not like to give them the designation which they usually bear in the profession, but I will call them myrmidons—employed for purposes of this kind, who could have saved me all the labour of detail. Having said thus much, my Lords, I shall call a gentleman from the Tower who will produce some of the records.

LORD CAMPBELL

Before my noble and learned Friend calls any witnesses, I will submit to your Lordships that, according to principle and custom, notice should be given to my right hon. Friend the claimant under this patent, who has an undoubted right to be heard. According to the precedent of the Brandon case, notice should be given to my right hon. Friend in order that he might appear by his counsel. I am anxious that your Lordships should not suppose that they are to proceed without giving to that right hon. person the right to be heard; but, upon inquiry, I find that the Motion that my right hon. Friend should be so heard ought to be made in the House and not in Committee. When your Lordships resume, therefore, I will make a Motion that the right hon. claimant might appear by himself or by his counsel.

LORD LYNDHURST

I ought to have added, that I shall produce extracts from the Journals to satisfy your Lordships that this is the correct course which I am now about to pursue, and a course perfectly consistent, and in accordance with Parliamentary usage from the earliest times.

EARL GRANVILLE

wished to know what was the petition of the right hon. claimant to which the noble and learned Lord referred?

LORD CAMPBELL

I have not noticed any petition in this instance. I said that my noble and learned Friend—I will call him my noble and learned Friend—ought undoubtedly to be communicated with. He sat for thirty years as a judge on the woolsack; and he ought to be permitted to sit on and speak from the woolsack when he appears here to assert his claim.

LORD ST. LEONARDS

It is quite right my noble and learned Friend should be heard. I do not rise to object to the Motion which my noble and learned Friend (Lord Campbell) proposes to make; but I wish to call attention to what took place in the Brandon case. In that case counsel were heard for three parties in that case at the bar—for the Crown, for the claimant, and for the House. The Crown is, in this instance, furthering the claim of the claimant, and the House is resisting it; so that the claim is not watched in the ordinary way on the part of the Crown, by the Attorney General, so as to see that no improper person may obtain a seat in this House.

LORD CAMPBELL

That is a matter for future consideration. On the fairest principle my right hon. Friend ought to be heard.

LORD REDESDALE

then put the question that the Keeper of the Records of the Tower be called in.

On the Motion of the Earl of DERBY, it was ordered that Lord LYNDHURST do examine the witnesses sitting.

Then HENRY JAMES SHARPE, Esquire, was called in, and having been sworn, was examined as follows:—

Have you the Charter Roll of the 1st of Richard the 2nd, in the Year 1377, containing the Creation of Guichard D'Angle as Earl of Huntingdon?

I have.

Will you produce it?

The Witness produced the same.

Will you have the goodness to read that Part which relates to this Subject?

It is rather stained, and the Light is very bad, so that it is rather difficult to read.

It has been printed, I believe?

It has been printed.

What is it printed in?

In the Report on the Dignity of a Peer. Will you read the Part which relates to this Subject?

The Witness read the same.

Have you the Translation of that?

I have not.

Will you make a Translation of it?

I will do so. The whole of the Document is printed.

You bring that Document from the Tower of London?

I do.

Have you a Parliament Roll of the 9th of Richard the 2nd, containing the Creation of Robert De Vere Earl of Oxford as Marquis of Dublin and Duke of Ireland?

I have (producing the same).

Have the goodness to read it.

The witness read the same.

Have you also the Charter Roll of the 9th and 10th of Richard the 2nd, and of the 10th of Richard the 2nd, containing the Creation of Robert De Vere as Marquis of Dublin and Duke of Ireland for Life.

Yes.

Will you read it?

The Witness read the same.

Have you a Copy of the whole of that?

I have not had Time to make a Copy of it. I did not receive the Summons of the House till between 9 and 10 o'Clock last night.

Is it printed?

All these Documents are printed in the Appendix to the Report on the Dignity of a Peer.

Have you also the Parliament Roll of the 13th of Richard the 2nd, containing the Creation of the Duke of Lancaster as the Duke of Aquitaine?

I have (producing the same).

Will you read it?

The Witness read the same.

Have you the Charter Roll of the 21st of Richard the 2nd, containing the Creation of Margaret, Countess of Norfolk, as Duchess of Norfolk?

I have (producing the same).

Will you read it?

The Witness read the same.

Have you the Patent Roll of the 2nd of Henry the 5th, containing the Creation of John of Lancaster as Earl of Kendal and Duke of Bedford?

I have (producing the same).

Will you read it?

The Witness read the same.

Have you another Part of the Patent Roll of Henry the 5th, containing the Creation of Humphrey of Lancaster as Earl of Pembroke and Duke of Gloucester?

I have (producing the same).

Will you read it?

The Witness read the same.

Have you the Parliament Roll of the 2nd of Henry the 5th, 1414, containing the Creation of Richard of York as Earl of Cambridge?

I have (producing the same).

Will you read it?

The Witness read the same.

Have you the Parliament Roll of the 4th of Henry the 5th, 1416, containing the Creation of Thomas, Earl of Dorset, as Duke of Exeter?

I have (producing the same).

Will you read it?

The Witness read the same.

Have you the Parliament Roll of the 10th of Henry the 6tb, and the Patent Roll of the 11th of Henry the 6th, and the Parliament Roll of the 20th of Henry the 6th, containing the Creation of Sir John Cornwall as Baron Faunhope and Baron Milbroke?

I have (producing the same).

Will you read those?

The Witness read the same.

You have now produced all the Documents specified in the Summons sent to you?

I have, and they are all printed in the Volume I have mentioned. I also produce the Patent Roll of the 11th of Henry VI. p. 2. m. 2., containing a Patent to the Duke of Bedford, and the Patent Roll 21 Hen. 6. p. 2. m. 1., containing a Patent to the Earl of Suffolk and Alice his wife, which I was desired to bring.

The Witness read the same.

Are they printed in Latin or in English?

They are printed verbatim et literatim.

You have no Translation of them?

No.

Are they printed in abbreviated Character?

Yes, they are printed literatim.

Besides accurate Copies of the original Documents, can you also make, for the use of the Committee, an extended Copy, without abbreviations, of each Document, and a Translation of each?

I can do so.

The Witness was directed to furnish Copies of the several Documents produced, together with Copies in extenso without Abbreviations, and Translations of the same.

You have not made any Search so as to be able to tell whether there are any other Instances than these?

I have had no Directions to make a Search.

You only lately had Notice of this?

At 10 o'Clock last night.

How long shall you be before you can get these Copies and Translations made?

It will take same Time; several Days certainly. Monday is the earliest Day by which it could be done.

What can you do by Monday?

I can send in Extracts of these Documents, or, in fact, Copies of these Documents, and Translations. That I understand to be what the Committee have ordered.

How long should you take to make a Search to ascertain whether or not there are other Instances of Life Peerages?

All Patents of Peerages are printed in the Appendix to the Report on the Dignity of a Peer. I mean all Patents down to the Reign of Edward the 4th, as far as they are in the Tower.

Are there none others?

There are none others in the Tower. In the later Series at the Rolls Chapel, since the Reign of Edward the 4th, none of them are printed.

How long would it take to make a Search at the Rolls Chapel for other Cases of Life Peerages?

I do not think it would take very long, because the Period is a short one.

How long would it take?

Perhaps till Monday.

You mean for the whole Period since Edward the 4th?

Since Edward the 4th.

The Witness was directed to withdraw.

While the witness was reading the Patent of the Marquess of Dublin, he was interrupted by

THE EARL OF ELLENBOROUGH

, who begged the witness might read more slowly, because, even if it were English and not Latin, it would be difficult to follow him.

THE LORD CHANCELLOR

Those of your Lordships who know what is the practice of the House are aware that, instead of asking the witness to read the documents produced, or extracts from them, he is merely required to hand them in. In this case it would be a mere waste of time, as these documents are already accessible to your Lordships. At the same time, I trust the Committee will feel that this is a matter in which they ought to proceed with the utmost rapidity; for, although my noble and learned Friend has an attack of the gout, yet, as that is passing away, and he will be in town this week, it is but too probable that he will present himself with Her Majesty's writ, and demand admittance to your Lordships' House. It is desirable, therefore, that your Lordships should proceed with the Committee as rapidly as possible.

LORD CAMPBELL

said, he quite concurred in what had fallen from the noble and learned Lord as to the desirableness of proceeding with the utmost rapidity in this matter. But as to what had fallen from his noble and learned Friend, to the effect that the noble and learned Baron would demand admittance, he begged leave now to give notice that if he did, he (Lord Campbell) should move that he be not admitted to the House until the Committee had reported to the House, and he (Lord Campbell) most sincerely believed the Lord President when he said that no such attempt on the part of the learned Baron would be made. He apprehended that he would give full notice to the House of his intentions, when he knew that the House was engaged in examining the question. But the noble and learned Lord knew, as well as he did, that no one who came with a writ founded upon a patent could be admitted, if the patent were invalid.

THE LORD CHANCELLOR

said, he must entirely dissent from what had fallen from the noble and learned Lord. He might be wrong, but his opinion was, that whether the patent was valid or no, or with or without a patent at all, when a person appeared at their Lordships' bar with Her Majesty's writ, the House was bound to obey it.

LORD BROUGHAM

said, he would not enter upon this emergent question of pure law; but he would merely state it as a matter of fact, that his right hon. Friend—or he would call him Lord Wensleydale—who was unhappily confined by a severe it of the gout, forty or fifty miles from this place, had the intention which he (Lord Brougham) communicated on his right hon. Friend's own authority—of coming to town as soon as the law and the gout would allow him.

LORD CAMPBELL

said, he hoped that if such an attempt were intended, that due notice would be given, and that it would be received as such an attempt ought to be received.

THE LORD CHANCELLOR

said, he hoped he should not be misunderstood that anything would be done without giving the fullest notice. It would be from no intentional disrespect, if Lord Wensleydale attempted to take his seat; but, at the same time, his noble and learned Friend was entitled to his view of the case, and that, without any disrespect to the House, he was bound to present himself for admission; indeed, he would not be rectus in curiâ if he did not appear and demand to be admitted.

EARL GRANVILLE

said, he thought he must have been misunderstood in the matter to which allusion had been made by the noble and learned Lord. It was true, as his noble and learned Friend (the Lord Chancellor) had said, that they had no wish to take the House by surprise; but, at the same time, he would not be understood as giving a pledge that they were to wait for the Report of the Committee. They might continue this discussion the whole of the Session, and the Queen's prerogative would remain all that time in abeyance. He must protest against being supposed to have given any such pledge.

LORD CAMPBELL

said, he had certainly understood the noble Earl to say that no attempt would be made to prejudge the question until the Committee for Privileges should have reported its decision. He was in favour of expedition, but due time ought to be afforded, and the opportunity of inquiring into the propriety and validity of an act which had no precedent in the history of the House for four centuries.

LORD ST. LEONARDS

could not help rising to speak upon the very important question which had been raised by the noble and learned Lord (the Lord Chancellor). His noble and learned Friend insisted that by the law of this country, if the Crown issue a patent, confined, as in this case, to a life dignity, accompanied by the usual writ of summons,—upon that patent being brought to the table of the House, and read in the face of the House, they could not, however invalid the patent might be, refuse to receive the noble person who brought it, because he had a writ of summons from the Crown, and had a right to a seat by virtue of that writ of summons. But let the House consider for a moment the difference between an ordinary writ of summons, unaccompanied by a patent, and a writ of summons founded upon a patent. If the writ of summons stood by itself they knew that, from the earliest period of their history, its effect was to enable the person who brought it to come into this House and sit there by virtue and in force of it; without a word about descendible quality. They took their seat at once in the House, because the writ of summons ennobled their blood to the extent of their lineal heirs. But how was that consistent with the case of the present claimant, who came there with a patent, conferring only a life dignity, and who would tell their Lordships that the last thing he wished to claim was that of hereditary dignity? Assuming the right of the Crown to confer the writ of summons, that of itself implied an hereditary dignity, and the effect of the learned Baron taking his seat by virtue of the writ of summons would be, that on his death the dignity would descend to his daughter. But was the Crown at this time of day in the habit of granting to the most favoured subject a patent extending to females? So much did the practice incline the other way, that it would come with surprise on the Crown itself; for, in point of fact, all patents were now confined to heirs male. Nothing, in his opinion, was more clear than the distinction which he had pointed out; and although he always listened with great respect to his noble and learned Friend (the Lord Chancellor), he thought that a greater fallacy never was uttered than that which he had stated to their Lordships, confounding the one case with the other. The noble and learned Baron—if that was the title by which they chose to call him—was a person for whom he had a very great respect, and whom he should be very glad to see take his seat in the House, if he came with a descendible title; but if he came in any other shape they might depend upon it that the opinion of the House must be taken before the question could be satisfactorily settled. Independent of the principle involved, there was the Brandon case to guide them. The noble person who then claimed to sit as a British Peer founded his claim on the patent of the Crown, and presented himself to the House; thus raising the question as to his right and dignity. The Queen herself was present in the House during the debate, which continued for a very long time. Eventually the question was decided in the negative, and the noble person did not take his seat. Every precedent, therefore, as he (Lord St. Leonards) apprehended, was directly contrary to the right now claimed.

EARL GREY

submitted to their Lordships that the course the proceeding had taken was very irregular and inconvenient. The noble and learned Lord who moved that the witness should be examined had partially examined him; and in the middle of the examination a conversation had sprung up, and they were now discussing, without any information before them, or any definite question put to them, the most difficult and delicate point on which they would have to decide. Surely, that was not a convenient course; and, being as willing as other noble Lords to expedite this business as much as possible, he should suggest that the noble and learned Lord who called this witness, instead of requiring their Lordships to hear read a quantity of law Latin, with which, he was sure, the noble and learned Members of their Lordships' House must be much more familiar than the majority of the Peers—for he confessed that he could hardly follow him—all the documents having been already printed by public authority, and being formally in possession of the House—the most convenient course would be, instead of having them read, to appoint some persons to assist the noble and learned Lord who had brought the subject before them. It was hardly reasonable, as the noble and learned Lord had himself stated, that he should have to search for all these documents himself. Let the noble and learned Lord, then, choose some gentleman to assist him to make such selections from the documents in the library of the House and elsewhere, as he may appoint; and having obtained them, let them be printed and brought before them; and then the noble and learned Lord might found some distinct Resolution upon them, calling upon the Committee to decide the point. He was never very sanguine of success by conducting an inquiry before a Committee of the Whole House; but if it was to continue, that was the only course to adopt to put an end to the inconvenience, and put an end to such irregular discussions as the present.

LORD BROUGHAM

agreed with his noble Friend that the House having unwittingly got into a legal argument, which, however important, was as yet immature, and which had nothing to do with that stage of the proceedings, the sooner they got out of it the better. He was sorry to say the gravamen of the offence did not lie on his side of the House, but on the other—not with his noble Friend the Lord Chief Justice, but he was sorry to say with the Lord Chancellor, who had brought the House into the difficulty by broaching the subject. Another suggestion of his noble Friend's opposite (Earl Grey) was one well worthy of consideration—namely, that for the purpose of expediting the decision of the question, and facilitating the proceedings, his noble and learned Friend should have the assistance of competent persons in the selection and presentation of documents to the House. Almost all that could be required were printed, and would be found in their Lordships' library; and that course might be the more necessary because his noble and learned Friend (Lord Lyndhurst) had to prove a negative. In ordinary Committees for Privileges sitting to consider individual peerages, the House received invaluable assistance from certain Members of the legal profession—whom he could name if it perhaps were not invidious to do so—who attended to the subject of peerage law, and were expert inquirers into these matters. Why should not their aid be conveniently and profitably called in by the House on the present occasion? He should have no objection to make a Motion to that effect.

LORD LYNDHURST

said, that the documents in evidence might have been read over twenty times during the time this discussion had been going on. He thought it was better to proceed as they were at present, and after that day to consider the suggestion of his noble Friend. He should be glad to know what the Lord Chancellor thought on the matter.

THE LORD CHANCELLOR

said, he had no objection to the suggestion that his noble and learned Friend (Lord Lyndhurst) should have competent assistance in conducting that inquiry, but it was for the Committee to sanction the course proposed.

LORD BROUGHAM

said, he would suggest to his noble and learned Friend that Mr. Fleming should be associated with him, to assist him in the performance of the task he had undertaken.

LORD LYNDHURST

said, he was very unwilling to be placed in the position which he then occupied; but, having undertaken that task, he was anxious to go through with it. He thought, however, that some Members of that House ought to be associated with him in preparing the case for the consideration of their Lordships.

LORD CAMPBELL

said, he shared the opinion that it was advisable his noble and learned Friend (Lord Lyndhurst) should have the assistance of a gentleman specially qualified to aid him in his researches, and he believed that the gentleman named by his noble and learned Friend (Lord Brougham) would be a proper person to select for that purpose.

LORD LYNDHURST

said, that what he wished was, that there should be associated with him a number of his noble and learned Friends, and that they should then have the assistance of some Gentleman specially conversant with details of that character.

LORD BROUGHAM

said, he should most cheerfully give his noble and learned Friend any aid he could afford in conducting the investigation.

LORD ST. LEONARDS and LORD CAMPBELL

also expressed their readiness to assist in that inquiry.

THE EARL OF DERBY

said, that the noble and learned Lord on the woolsack expressed a great desire to have that inquiry expedited as much as possible, and that was, no doubt, the desire of every one of their Lordships. Now he would suggest to the noble and learned Lord that he would himself very greatly contribute to the accomplishment of that object, as well as facilitate the decision of the question at issue, if he would move for the production of copies of those grants of peerages on which he relied in arguing in favour of the validity of the recent exercise of the prerogative of the Crown.

THE LORD CHANCELLOR

said, that he had nothing to move for in the matter. The precedents on which he relied were all contained in a volume which had been already printed, and the necessary extracts from that volume had already been ordered to be produced.

LORD LYNDHURST

said, that he would do all in his power, with the assistance of his noble and learned Friends and of the gentleman who was to be associated with them, to expedite the decision of the point at issue. But he would remind their Lordships that in an inquiry of that importance, they were bound to take every step that was necessary to enable them to arrive at a right conclusion. They were not to put in comparison with an important constitutional question of this kind the personal convenience of a particular individual, however respectable. He was sure that their Lordships would concur with him that whatever time might be necessary to thoroughly investigate the subject would be properly employed in coming to a right conclusion upon it.

LORD BROUGHAM

stated, that, however desirable despatch might be in that matter, there could be no doubt that they ought to take care not to make more haste than good speed.

LORD LYNDHURST

said, he did not know that they could do anything better than to adjourn until Monday next. He therefore proposed an adjournment of the Committee until Two o'clock on Monday.

LORD CAMPBELL

gave notice that when the House resumed he would move that his right hon. Friend (Lord Wensleydale) should be heard by himself or his counsel in support of his claim to sit in the House.

THE LORD CHANCELLOR

said, he could state, on the authority of his noble and learned Friend Lord Wensleydale, that he would decline to take any part in those proceedings. His noble and learned Friend considered—and, as he (the Lord Chancellor) believed, properly considered—that the whole question was at present coram non judice. Without intending any disrespect to this House, he meant to claim admission to the House by virtue of his patent and writ, or by his writ alone. And as he intends to take that course, so does he intend respectfully to decline the jurisdiction of this Committee. He said he had received no intimation that the question had been referred by Her Majesty to the House; and until he should receive such an intimation he could not recognise their right to deal with it.

LORD CAMPBELL

said, that that might be a very natural view of the question for his noble and learned Friend to entertain; but that was no reason why their Lordships should dispense with regularity in their proceedings. He should therefore make the Motion of which he had given notice.

EARL GRANVILLE

asked what would be the effect upon the public mind if the Committee were now to adjourn for another week without any intimation being given of the course which they were about to adopt? After the evidence which had been taken, he was as much at a loss to know what course was to be taken as he was when the Committee first met. At the same time he had no wish to oppose the adjournment.

THE EARL OF ELLENBOROUGH

said, he understood that the evidence which had been given at the bar was to be printed for the purpose of placing before their Lordships facts on which they were to proceed; and it was impossible to go on until they had read those facts.

EARL GREY

said, that evidence had been called to prove facts which were admitted on both sides, and which no man had ever doubted or disputed. Having occupied themselves for an hour in proving that which every one knew, they were now to adjourn for a week to prove additional facts with which every one was equally familiar. What they wanted was, some clear and definite issue brought before them. If their Lordships were prepared to vote that the patent granted to Lord Wensleydale was illegal, they ought, as it appeared to him, to receive a notice to that effect; but let them not continue the present form of proceeding, which, he was very sorry to say, had degenerated into something not very dignified. He submitted that if the Committee were to be of any use, those who had asked the House to go into it were bound to advise the House as to the course which it ought to adopt; and the ordinary plan would be to move a resolution on the subject.

THE EARL OF DERBY

observed, that the question before the Committee was perfectly clear; it was the validity of a patent purporting to convey to a commoner the right of sitting in their Lordships' House, that right not being descendible to his heirs. The noble Earl (Earl Grey) said that the precedents quoted in the case were admitted on both sides of the House, and were a matter of notoriety. But he would remind the noble Earl that the House was now called upon to proceed in a judicial capacity, and that they were not at liberty to act on matters of mere notoriety, but were bound to have the evidence legally before them. If it should result from that evidence that there was no precedent in existence for the step which had been taken in the present case—that the House had never allowed the holder of a life peerage to sit and vote as one of their body—he thought that it would go far to lead the Committee to come to the conclusion that the recent exercise of prerogative was, to say the least of it, unconstitutional.

EARL GRANVILLE

said, that having already stated the ill effect which the adjournment of the Committee was calculated, as he thought, to produce on public opinion, he did not mean to offer any further opposition to the Motion.

THE EARL OF ABERDEEN

said, that he felt so strongly the objections to the appointment of that Committee, that he had voted against the Motion of his noble and learned Friend (Lord Lyndhurst), although he entertained opinions very much the same as those of his noble and learned Friend with reference to the patent itself which had been brought under their Lordships' consideration. He thought that the appointment of a Select Committee for Privileges in that case was sure to lead to inconvenience such as that which they had already begun to witness; and it appeared to him that the appointment of a Select Committee, as suggested by his noble Friend behind him (Earl Grey), to consider the question, was the only course calculated to lead to a satisfactory conclusion upon the point at issue. And what had been the actual result of their proceedings? Why, the result had been, that they were obliged to appoint what was equivalent to a Select Committee to conduct the inquiry.

LORD LYNDHURST

said, he thought the course which had been pursued in the matter was perfectly natural and intelligible. The direction of the Committee for Privileges was that they should examine, consider, and report upon the patent granted to Baron Parke. They were then examining into the facts, and after the examination should be concluded, they would have to consider them, and then to report the result of that consideration to the House. Was it to be said that they were to have no examination in the case? And how could they examine without hearing evidence? It was stated that they had brought their present difficulties upon themselves by agreeing to a Motion for referring the patent to a Committee for Privileges; but his reply was, that if he had not moved for a Committee for Privileges, precisely the same difficulties would have arisen in an inquiry by the whole House. He did not believe that a single instance could be found, in which a question as to the validity of a patent of peerage had been raised, that that question had not been discussed either by the House itself or by a Committee for Privileges.

THE MARQUESS OF CLANRICARDE

did not think that any inconvenience would result from the present mode of inquiry. If the House had taken the matter into its own hands it would have been necessary to collate the precedents bearing on the case, and to ascertain what they were worth. That was exactly the course which the Committee was advised to pursue, and he really could not see what objections could be taken to it, especially when he recollected that in the debate on Thursday night the organs of the Government stated that one of their objects in granting a life peerage to Baron Parke was to raise the question.

EARL GRANVILLE

denied having stated that a life peerage was granted to Baron Parke with a view to raise the question. In answer to the argument urged on the other side, that this was a wanton exercise of the prerogative, he stated that a similar offer having been made to a learned and very distinguished Judge, and he having declined it on the ground that he knew such a creation to be unpopular, the Government thought it a decided advantage that so eminent a man as Baron Parke should be the first to accept the dignity.

THE EARL OF CARNARVON

said, that those noble Lords who had no special acquaintance with the law, and who thought that an inquiry should be instituted into that matter, had no choice left to them but to vote in favour of a Motion supported by almost every noble and learned Member of the House—that the question at issue should be considered in a Committee for Privileges, and having adopted that course he thought they were bound to go on with it. For his part he regretted that the discussion had ever been raised. He thought it very unfortunate that the validity of the creation of a life peerage should have been mooted, and doubly unfortunate that Her Majesty's Government should have persevered in a course of proceeding upon the subject which was opposed to the general sense of their Lordships. He could not but think that the support which the Government had received from Members on all sides of the House, in the present delicate condition of our foreign relations, entitled the House to more forbearance in return.

THE LORD CHANCELLOR

wished to correct a misapprehension which seemed to have arisen in some quarters of a statement he had made on Thursday last. It had been supposed that he had stated that Lord Wensleydale had been selected in order to try the validity of the creation of a life peerage. Now, it was impossible that he could have made use of any such language. He solemnly protested that he had never heard a whisper, until the evening before Parliament had met, that the validity of the proceeding could possibly be questioned. What he really stated was, that it had occurred to Her Majesty's Government, that if it were desirable to create life peerages, no better selection could be made for a commencement of the exercise of the power than Lord Wensleydale, who was not poor, and who was not likely to have any posterity to whom a title could be transmitted. On the first day of term his noble and learned Friend the Lord Chief Justice suggested to him a doubt as to the policy of such a step; but added that he had not the least doubt of its legality. [Lord CAMPBELL: No, no!] His noble and learned Friend said "No," and he (the Lord Chancellor) must, of course, have misunderstood him; but he protested most solemnly that his noble and learned Friend had used language to him which he had so understood, although he must, no doubt, have understood it incorrectly.

LORD CAMPBELL

said, if the House would allow him he would state to the best of his recollection what passed between him and his noble and learned Friend on the occasion in question. He told his noble and learned Friend that he had heard that Lord Wensleydale was to be called to the House of Lords as a Peer for life, and he asked his noble and learned Friend whether the rumour was a well-founded one? His noble and learned Friend replied that it was; and he (Lord Campbell) then stated that he was sorry for that, as he should be obliged to make a row about the matter as soon as Parliament met.

EARL GRANVILLE

said, he had reason to believe that five years ago, at all events, his noble and learned Friend (the Lord Chief Justice) thought that the creation of a life peerage would be perfectly legal; and, admitting that he has accurately described the conversation he had with his noble and learned Friend near him (the Lord Chancellor), he should like to know the precise date since that period when his noble and learned Friend had changed his opinion upon the subject.

LORD CAMPBELL

said, he had never formed any decided opinion one way or the other. In the course of the debate the other night he frankly acknowledged that the impression on his mind was that the Crown might create life peerages. His authority for thinking so was Lord Coke; but he was not aware upon what the doctrine rested, nor was he acquainted with a single precedent on the one side or on the other. But when he came to examine the subject, and when he found there had been no instance of such creation for a period of 400 years, and that even beyond that period no instance had been produced in which a commoner had sat in that House as a Peer for life, the impression on his mind was considerably weakened; and he had no hesitation in saying that, unless some such instance were produced, he should come to the conclusion that it was beyond the prerogative of the Crown to create a Peer for life only.

THE MARQUESS OF CLANRICARDE

said, that, after what had been said he must admit that he had misapprehended what had fallen from his noble Friend the President of the Council upon a former occasion with reference to the creation of the life peerage under discussion. At the same time it was a misapprehension which had been shared in by several other noble Lords. There was no good reason at the present moment why that peerage should be created merely for judicial purposes, and he was, therefore, at a loss to know why it had been granted if not to try as soon as possible the question of Privilege which it involved.

LORD BROUGHAM

observed, that whether the Government had created Baron Parke a Peer for life with the view of trying the question involved or not, was a matter, of course, on which he could give no decided opinion. It was, however, difficult to imagine that they could have any other object in view, inasmuch as in the case of his learned Friend, who had not, and who was not likely to have, a son, an hereditary and a life peerage were of precisely the same value.

LORD LYNDHURST moved that any additional documents which he might have to submit to their Lordships should be printed and laid upon the table on Monday, in connection with the evidence which had already been adduced.

VISCOUNT DUNGANNON

said, that, although he as much as any man should rejoice at seeing a lawyer of Baron Parke's eminence elevated to the peerage, yet that he must deprecate strongly the unusual course which had been taken by Her Majesty's Government to effect that object. It was a course which, if persevered in, would pave the way for the utter annihilation of the dignity and real independence of their Lordships' House. It was upon that ground that he had felt it to be his duty to vote for the Motion of the noble and learned Lord, to refer the question to a Committee of Privileges.

Proposed to adjourn this Committee to Monday next at Two o'clock. Accordingly, Adjourned to Monday next, Two o'clock.

House resumed:

LORD CAMPBELL

said, he should take that opportunity to move, That notice should be given to the right hon. Sir James Parke, to the effect that he might be heard before the Committee of Privileges, either in person or through counsel; and in order to obviate any inconvenience which might arise as to the position which his noble and learned Friend should take in the House, an intimation might be added to the notice to the effect that his learned Friend might take his seat upon and speak from the woolsack.

THE LORD CHANCELLOR

objected to the words "Sir James Parke" which his noble and learned Friend proposed to introduce into the notice. No person could deny that Her Majesty had created the late Baron Parke Baron Wensleydale for some purposes, and he bad a right to be designated by that title. His claim to sit in that House was the only point on which their Lordships were at issue.

THE EARL OF DERBY

said, that the question of title which had just been raised recalled to his recollection the circumstance that he had seen the words "Baron Wensleydale" inscribed upon the Roll of their Lordships' House. Their Lordships not having admitted the claim or right of that person to sit in the House, he called in question the propriety of his name being placed upon the Roll. He called their Lordships' attention to the fact, in order that the title of Baron Wensleydale being on the Roll of the House should not be held as a precedent, or be of any weight in this or any other case.

LORD REDESDALE

said, that the words appeared upon the Roll upon the authority of the clerk who had prepared it, and upon no other.

THE MARQUESS OF LANSDOWNE

said, it was impossible to admit any Motion that would imply a doubt as to the title of Baron Wensleydale. It was the undoubted prerogative of the Crown to confer such a title. His noble and learned Friend (Lord Campbell) had progressed very much on this subject. He admitted that he had changed his opinion—that in former years he believed Her Majesty had the title, privilege, and authority to make such peerages as the present, but that, on looking into the authorities, he had altered the opinions he then held. Neither his noble and learned Friend, however, nor any other noble and learned Lord had, up to that moment, ventured to intimate a doubt as to whether Her Majesty had or had not the right to confer any title and give right of precedence. He would be surprised, indeed, if his noble and learned Friend should state that he had any doubt on the subject; but it could only be with a doubt on this subject that the House should be at all called to entertain the question. By all the authorities he had read, and in all the speeches he had listened to, it was admitted that Her Majesty had the right—a right supported by a cloud of witnesses—to confer titles of precedence. The question arose only when the person upon whom Her Majesty had thought fit to confer a title presented himself to be admitted into their Lordships' House. Baron Parke would appear in that House as Lord Wensleydale; made Lord Wensleydale by Her Majesty; entitled to precedence as Lord Wensleydale—a precedence of which their Lordships, with all their Committees and all their reports, could not legally deprive him.

LORD REDESDALE

said, he did not think it advisable that his noble and learned Friend (Lord Campbell) should persevere in that part of his Motion which set forth that Lord Wensleydale might be heard in person before the Committee of Privileges. In the case of the Brandon peerage the Duke of Hamilton was not heard in person, but through his counsel—a precedent which, in his (Lord Redesdale's) opinion, it was advisable to follow in the present instance. He might add that Lord Wensleydale could have no claim to be heard from the woolsack, even though he should appear in person, inasmuch as he was no longer a Judge; neither could he address their Lordships from his seat, except under a heavy penalty, his right to sit in that House not having as yet been recognised. It was for obvious reasons not desirable that he should be called upon to speak from the bar, and upon these grounds it was that he (Lord Redesdale) asked his noble and learned Friend to withdraw that portion of his notice to which he had just referred.

THE EARL OF ABERDEEN

remarked, that the case of the Duke of Hamilton which had been quoted by the noble Lord was not one in point, inasmuch as that noble Duke was one of the sixteen Scotch Peers, and was of right entitled to sit and vote in Parliament.

Lord CAMPBELL consented.

Then it was agreed, That the Right Hon. James, Baron Wensleydale, be at liberty to be heard by his Counsel, if he think fit, on Monday next, before the Committee for Privileges appointed, &c.

House adjourned to Thursday next.

Back to