§ THE EARL OF DERBY
rose to call their Lordships' attention to a matter relating to the Privileges of their Lordships' House. His noble Friend the Lord President of the Council had been good enough to undertake to give notice of any petition which he might receive relating to the Baron Fermoy. His noble Friend had yesterday sent him a note stating that he had received a petition on the subject, and had placed it in the hands of the noble and learned Lord on the woolsack, who by some accident had at once referred it to the Committee for Privileges. Although he (the Earl of Derby) did not mean to say that in ordinary cases the course adopted was not the proper one, the present case 699 was very peculiar, and involved some important features. Now, in ordinary cases of a claim to a peerage, the course was that the claimant should prove his lineal descent from some person who had formerly been entitled to the privilege; and if there was any doubt as to the patent or if, as in the present case, there was a new patent, he would have to produce it and to prove his right to hold it. In this case there was no doubt that a patent had been granted; but the question which the Committee for Privileges would have to decide was, whether the patent was valid and in accordance with the law which regulated the exercise of the prerogative of the Crown. He must say, in passing, that he considered it a singular misfortune for Her Majesty's Government, that whereas, so far as he knew, for centuries there had been no difference whatever between the House and the Crown with respect to the exercise of the prerogative, they had contrived during the single year in which they had held office to involve the Crown and the House in two separate questions in both of which the exercise of the prerogative of the Crown was disputed, and in both of which it was proved to be contrary to invariable precedent; and in the present case it was quite clear, and indeed was not disputed, that an interpretation had for the first time been given to the law directly opposed to the interpretation which had prevailed since the passing of the Act of Union. He could not avoid upon the present occasion troubling their Lordships with a recapitulation of the facts as they bore upon the particular point of law. By the Articles of Union, it was competent to the Crown on the extinction of three Irish peerages which had existed previous to the Union, to create one Irish Peer, and to continue that practice until the number of Irish Peers, exclusive of those who sat in their Lordships' House as English Peers, should be reduced to a hundred. The House would bear in mind that it was not till the number of Irish peerages should be so reduced, but the number of Irish Peers. Almost immediately after the passing of the Act of Union in 1800, the Earl of Montrath died, the earldom became extinct, but the Barony which was left in remainder still survived, and went to the nephew of the deceased Earl. It was perfectly clear, at the time this occurrence took place, that it was not considered to have created such an extinction of a peerage as to justify the Crown in consi- 700 dering it one of three vacancies which would empower the exercise of the prerogative to create a new Peer. Numberless other cases of the same kind took place; various earldoms became extinct; but the baronies connected with them not becoming extinct, it was held that the peerage was not extinct in the sense of the Act of Union, In the case of Viscount O'Neill, for instance, the earldom had become extinct; but it was not such an extinction of peerage as justified the Crown in taking it into consideration in creating a new Irish Peer, because the viscounty still remained, collateral heirs acceding to it. Another case was that of the late Marquess of Thomond, on whose death the marquisate became extinct, and a noble Friend of his, who was better known in the House of Commons as Sir Lucius O'Brien, succeeded to the barony of Inchiquin. There was, however, an earldom combined with the marquisate which remained in abeyance. That, however, did not create a vacancy in the peerage, still less, he apprehended, did it create two vacancies; and yet it was upon that principle that Her Majesty's Government, after the lapse of fifty-four years, had thought proper to act. If such a principle were affirmed it must follow as a necessary consequence that every Peer who had died since the Union, although leaving a successor, must have created as many vacancies as he held titles by separate patents, which would be quite inconsistent with the intentions of the framers of the Act of Union, who contemplated that peerages should be conferred with a view to reduce the number of Peers to 100. If the Government created a Peer for every three such extinctions the intention of the framers of the Act of Union would be entirely evaded, and the effect would be to increase, instead of to decrease, the number of Irish Peers. It happened last year that three peerages were supposed to be vacant. The Earl of Tyrconnel's was one, Lord Montrath's another, and the Marquess of Thomond's was the third; and Her Majesty's Government, contrary to all precedent, had advised Her Majesty to create a Peer in consequence of those peerages being in abeyance. To justify this, recourse was had to the supposed precedent of the earldom of Montrath; and it was for the first time contended, after the lapse of fifty years, that the extinction of that earldom was, in the sense of the Act of Union, such an extinction of a peerage as justified the exercise 701 of the prerogative to create a new Peer. That was the position assumed, and if such an interpretation were to be held good it followed, from the circumstance of a number of peerages of the same kind having become extinct since the Union, that Her Majesty had at this moment the right of creating nine or ten additional Irish Peers, to say the least, if the number of peerages which were held by the same person were to be reckoned as distinct peerages. This was a very important question, and in accordance with the existing state of the law had been properly referred to a Committee of Privileges, the point to be discussed before that Committee, and decided by it, being whether the Act by which that peerage was created was in accordance with, or in contravention of, the Act of Union? That question, no doubt, would be properly considered by the Committee and by the noble Lord the Chairman of that Committee; but the question arose, who was to oppose the claimant? In ordinary cases, when a claimant for a peerage came forward to make his claim, the Attorney General, on the part of the Crown, watched the case against the claimant. In this case, however, it could not be supposed that he would do so, because the Crown neither opposed the claimant nor questioned the validity of the patent. And it was a matter for the consideration of the House whether they should not by a Resolution instruct the Committee that counsel should be employed for that purpose. How otherwise could they have the case fairly and amply argued before them, for, in point of fact, both the counsel for the Crown and the counsel for the claimant would be on one side? The creation of such a peerage, in his opinion, was not only contrary to the intention of the Act of Union, but was neither in conformity with the reason of the case nor in accordance with the practice that had prevailed from the passing of that Act down to the present time. It would be for their Lordships to adopt or reject the Report of the Committee; but, certainly, nothing more ought to be done until the Fermoy patent had been inquired into in the fullest and amplest manner, with regard to the state of the law applicable to it, and upon which it was now for the first time attempted to put an interpretation different from that which it had ever hitherto received.
§ EARL GRANVILLE
said, that although his noble Friend had been good enough to 702 give him notice that he meant to make some observations when the petition of Baron Fermoy was presented to their Lordships, yet he was not prepared to hear his noble Friend enter so fully into the law of the case. But even if he had been aware of it, he believed he should have exercised a sound discretion in abstaining from arguing a case which had been referred to a Committee of Privileges. No doubt Her Majesty's Government, acting upon the advice of the law officers of the Crown, and also upon the advice of the distinguished Gentleman in the other House who was Attorney General under the Government of the noble Earl, had advised Her Majesty to create this peerage in the way described by the noble Earl. But, when the noble Earl talked so much about the unusual manner in which these peerages had been given, and had assumed it for granted that the course pursued was illegal, he (Earl Granville) must beg to remind the noble Earl of something that was not unusual in the case of the elections of Irish representative Peers. Their Lordships knew perfectly well that, whatever might be the qualification of an Irish Peer, however moderate he might be in politics, and however well qualified to take part in the proceedings of their Lordships' House, yet, unless he carried with him the political approval of the noble Earl himself, he had not the slightest chance of obtaining a seat in that House. With regard to the manner in which this question should be argued before the Committee, no doubt the petitioner should be allowed to argue it by counsel on his own behalf. And although the noble Earl had said that it would not be very satisfactory that the Attorney General, who had advised upon the granting of this peerage, should be the person to watch the proceedings, he (Earl Granville) apprehended that that dissatisfaction would not be less if the learned person who held the office of Attorney General under the noble Earl's own administration were appointed to do so; though he was quite sure that neither of those hon. and learned Gentlemen anymore than Her Majesty's Government would wish to throw the least obstacle in the way of having the question fairly investigated and argued. However, Her Majesty's Government would throw no obstacle in the way of the Committee's coming to a clear understanding of the case from the want of some learned Gen- 703 tleman not connected with the Government being appointed to argue it as against the claimant. With regard to the supposed analogy between the case of Lord Fermoy and that of Lord Wensleydale, he confessed he could not see any whatever. The two cases appeared to him to be as different as possible. It was necessary that Lord Fermoy, in order to obtain the right of voting for an Irish representative Peer, should have a resolution passed by their Lordships declaring that he possessed such right. There was, therefore, an essential difference between the two cases, as no act on the part of their Lordships was required in the case of Baron Wensleydale.
§ THE EARL OF DERBY
begged to disclaim the power and influence which the noble Earl bad attributed to him with regard to the appointment of Irish representative Peers. In the case of the creation of a new Irish Peer, that rested entirely in the hands of the Crown itself; and with respect to the election of Irish representative Peers, that rested with the Irish Peers themselves. But even if he did possess the influence attributed to him, in what manner, he would ask, could that bear upon the question before their Lordships? The noble Earl denied any analogy to exist between this and the Wensleydale case. There might not strictly be any such analogy; but the cases were alike to this extent—that in each case the House of Lords asserted the right to inquire into the question whether the Royal prerogative which conferred on the two claimants a right to a seat in that House had been exercised in accordance with the law and constitutional precedents. He supposed that even the noble and learned Lord on the woolsack would hardly assert that they were not justified in doing so in the present case.
expressed his entire concurrence with the opinions of both his noble Friends, for, while he considered that there was in many respects a difference between the two cases, there was in one respect, and that a most material respect, a very close analogy between them; and that analogy consisted in the fact that the point referred to the Committee of Privileges in both instances was the same, and came precisely under the same jurisdiction—that point being that in both the House was entitled to a jurisdiction in examining whether there had 704 been a proper exercise of the prerogative of the Crown in accordance with the laws and constitution of the country. It must not be supposed for one moment that he doubted the prerogative of the Crown to grant honours to any person to whom it might be advised to grant them. No one questioned the prerogative of the Crown to grant honours to any person. The only right contested was, the right to sit in that House. The right to a peerage, the right to be called a Peer—to be called a duke, a marquis, an earl, a viscount, or a baron—no person denied that the Crown was entitled, by its prerogative, to confer. The person so ennobled would, to all intents and purposes, save one, have the privileges of the peerage; he would enjoy the privilege of freedom from arrest, he would have station and precedence, and he might be a Privy Councillor; but their Lordships bad the right, the imprescriptible right, to inquire into the title of that party to a seat in that House. He was not one to question the right of the Crown to ennoble by a patent; the question was as to the right to sit in Parliament upon a writ founded on that patent.
THE EARL OF DESART
observed, that the noble Earl opposite had chosen to throw out an insinuation with reference to the election of the Irish representative Peers. He assured the House that there was not the slightest collusion between the noble Earl (the Earl of Derby) and the Irish Peers to secure the election of Peers holding particular opinions. The election was the simple choice of the Peers; and if men of principles opposed to those of the noble Earl opposite were chosen as the representatives of the opinions of the majority of the Irish Peers, it was no fault whatever of theirs.
deprecated the display of political heat, which had not been confined entirely to one side of the House, and wished rather to confine the question to the point at issue. With respect to the case of the Baron Fermoy, he concurred with the noble Earl opposite, that it was extremely desirable that the question should be fully argued before the Committee of Privileges, and he apprehended that no difficulty would arise in carrying out that object, for the bar was abundantly rich in advocates who could discuss the question for and against the claimant. In the other case, the question on which the House would feel bound to form an opinion would 705 be with respect to the validity of the patent; and in this, as to whether Baron Fermoy, as an Irish Peer, had a right to sit; in both cases, therefore, the right of sitting and voting in that House was to be decided, so that so far there was an analogy between them.