HL Deb 18 February 1856 vol 140 cc898-909

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—Met.

THE LORD REDESDALE

in the Chair.

The Order of Adjournment was read.

The Minutes of the last Committee were read.

Then HENRY STONE SMITH, Esquire, Chief Clerk in the Parliament Office, having been sworn, was examined as follows:—

Do you produce the Journals of this House from the Year 1660 to 1697?

I do (producing the same).

Do you find there Entries relating to the Banbury Peerage?

I do.

Will you read them?

The same were read; and will be found reprinted in extenso in the Minutes of Evidence before the Committee, printed by Authority.

In the Journals for the Year 1661 do you find an Entry relating to the Purbeck Peerage?

I do.

Will you read it?

The same was read.

In the Journals for the Year 1660 do you find Entries relating to the Marquis of Worcester's Patent to be Duke of Somerset?

I do.

Will you read them?

The same were read.

In the Journals for the Year 1694 do you find some Entries with respect to the Question of Peers' eldest Sons being summoned in the Lifetime of their Fathers?

Yes, I do.

Will you read those Entries?

The same were read.

In the Journals for the same Year, 1694, do you find some Entries with respect to the Descent of Baronies by Writ?

Yes.

Will you read those Entries?

The same were read.

Do you produce also the Journals for the Year 1710?

I do (producing the same).

Do you find there Entries with respect to the Duke of Ormond's Title as Lord Dingwall in Scotland?

I do.

Will you read them?

The same were read.

Have you the Journals for the Year 1711?

I have (producing the same).

Do you find there Entries respecting the Duke of Hamilton's Patent, creating him Duke of Brandon?

I do.

Will you read them?

The same were read.

Have you the Journals for the Year 1855?

I have (producing the same).

Do you find there an Entry relating to the Barony of Fermoy?

I do.

Will you read it?

The same was read.

Have you made Copies of the Extracts from the Journals which you have read?

I have (producing the same).

The same were delivered in.

Do you produce the Third Volume of the printed Rolls of Parliament?

I do (producing the same).

Do you find there an Entry of the Twenty-first of Richard the Second, intituled "Prefection des Dues"?

I do.

Will you read it?

The same was read.

LORD LYNDHURST

We have now, then, extracts from the Journals, and a series of records, charters, and patents, upon the table. It may be said, that they only supply affirmative evidence, and but certain facts. Will it be necessary that we should go through all the records previous or subsequent to the period to which these documents extend, for the purpose of proving negatively that there is nothing to contradict them? If so, then, although we have made use of the greatest possible diligence for the purpose of such a search, we have not had time to complete it. I wish, therefore, to know from noble Lords opposite whether they consider that the papers printed and referred to in the original discussion comprehend the whole of the facts for the purpose of raising the question before us?

THE LORD CHANCELLOR

said, he could make no answer. He did not know what their Lordships' opinion might be; but so far as he was concerned, his noble and learned Friend must take his own course, and make out his own case.

LORD LYNDHURST

Then it would be necessary to make the search; and the Gentlemen who would have to do it have used the greatest possible diligence to do it by to-day, but have found it impossible to complete the search in the negative within the time limited by the adjournment.

LORD BROUGHAM

would remind his noble and learned Friend that the question would not come on before the House until Thursday.

LORD LYNDHURST

I am not in a condition to pledge myself as to that day. We applied to search for some documents at the Rolls Chapel, and were referred to the Master of the Rolls, who said he could not interfere in the matter without the express order of your Lordships. We have not had an opportunity of obtaining the order; and that has been one of the obstructions we have met with in pursuing the inquiry.

THE LORD CHANCELLOR

said, he had heard that for the first time now, and he knew nothing about it. He was aware, indeed, that his late noble and learned Friend Lord Langdale, had always said that the officers of the Rolls were employed by the Court of Chancery, and ought not, without the express order of their Lordships, to be interrupted in the discharge of their duties. This may have been the reason for the course taken by the Master of the Rolls.

LORD BROUGHAM

said, no doubt his right hon. and learned Friend the Master of the Rolls took the same view on the subject as the late Lord Langdale; that without an order from their Lordships he was not at liberty to interrupt the ordinary business of the Court for such a search. The making the order would, however, be quite a matter of course.

THE LORD CHANCELLOR

said, he hoped the expression of his noble and learned Friend opposite that this had been an "obstruction" he had met with, was not intended to throw any imputation upon the Master of the Rolls.

LORD LYNDHURST

I merely stated the fact as the reason why further evidence was not laid upon the table. We have examined all the cases of which we have found any mention. We could not go further.

LORD CAMPBELL

regretted that any obstruction should arise, or any delay should take place, as it was desirable to come to a conclusion as expeditiously as possible. Their Lordships were all morally convinced that upon their table lay all the evidence that could be adduced. And although, in point of technical strictness, it would be necessary to call a person who had made a search to state positively that no further evidence existed; yet his noble and learned Friend on the woolsack might dispense with that form, and thus save a great deal of time.

LORD BROUGHAM

said, that no one felt more strongly than he did the great expediency and necessity of expediting this inquiry, and of coming to a conclusion one way or the other with the least possible delay; but it was quite clear that the delay now required to be interposed was exceedingly important; because if there had been no delay his noble and learned Friend would have been prepared to give notice of a Motion for Thursday or Friday next. The question, therefore, was whether the discussion should take place on one of those days, or be deferred till Monday next.

THE EARL OF DERBY

My Lords, the question has been dealt with by the Government as if it were being conducted by counsel on opposite sides, who were determined to afford no facility to promote justice. But, my Lords, this is not a question we ought to treat as between two opposing parties; still less in at all a technical or captious spirit. We have had confided to us, as a body, the task of investigating the precedents which may appear either to support or to refute the course taken by the Government. And the noble Earl opposite (Earl Granville), has expressed, on the part of the Government, his anxiety (in which your Lordships share) that the matter should be determined with the least possible delay. My Lords, I cannot help thinking that it is inconsistent with this desire that when my noble and learned Friend near me (Lord Lyndhurst) made a proposition to the noble and learned Lord tending to facilitate the matter—either by an admission that the evidence was sufficient, or an assertion that it had not been sufficiently disclosed—the noble and learned Lord, instead of meeting that suggestion in the manner which might have been expected, meets it with an intimation that my noble and learned Friend must "take his own course and make out his own case!" My Lords, it is not my noble and learned Friend's case. It is the case which the House has deputed to all of us, and upon which a duty has devolved upon all of us, in which we are all equally engaged. It is not, therefore, for any party to attempt to throw difficulties in the way, or prevent the admission of the truth. If the noble and learned Lord opposite (the Lord Chancellor) says he is not satisfied, on the part of the Government, until an investigation has taken place, which is necessary for us to establish the negative, and he is not disposed to afford us any facility in bringing forward the case on affirmative evidence, but throws upon us the difficulty of proving a negative by a more technically strict search than has yet been made, then your Lordships can see that the difficulties now interposed in our way are not to be attributed to those who deny the validity of the patent, but to those who profess a great desire to expedite the matter, in order that Lord Wensleydale may take his seat in this House. If further evidence is to be sought, a further adjournment must take place; and when the evidence has been all collected will be the time for my noble and learned Friend to give notice of the resolutions he may have to propose, and of which I believe he is even now prepared to give notice.

EARL GRANVILLE

observed that when, on a former occasion, he stated that it was desirable this matter should be expedited as much as possible, he did so because he thought that by the course they were then pursuing they were going to lose time unnecessarily. At the same time he entirely concurred in the opinion that the question having been once raised it should be thoroughly inquired into, and that no necessary step should be omitted towards arriving at a satisfactory conclusion. Whether any further proof was required beyond what the noble and learned Lord had adduced it was impossible at that moment formally to determine. If he were asked his opinion, he should say that he believed the case of the noble and learned Lord would not suffer by his not going into any further evidence. But, as to saying that no further evidence was necessary, it was impossible for him or his noble Friends around him to make any such assertion. With regard to the observation of the noble Earl (the Earl of Derby) as to this being considered a case between two disputing parties, instead of being treated as a matter affecting the whole House, he could assure the noble Earl that if the Government had determined to treat this merely as a party question, beyond which they had no further interest, their task would have been infinitely more easy than it now was. But such certainly was not their view of the case, and he trusted that no misapprehension would take place on that point: while, on the one hand, he hoped there would be no unnecessary delay, on the other hand he was desirous that no single step should be omitted that would really be useful in the consideration of the question before the Committee.

LORD ST. LEONARDS

said, he had understood the noble and learned Lord (the Lord Chancellor) to state the other night, that the cases upon which the Government relied, were those already on the table; and that upon being asked, whether he desired that any further cases should be searched for, he answered that he had no such desire. He could not doubt that the Government upon so serious a question would have pursued the proper course, and that before they granted the patent, they would have examined with care all the precedents that could be found. The question, therefore, as to evidence of the negative was one of such strict proof as might be refused on a trial at law; and if ever there was a case in which such strictness of evidence should not be expected, it was the present case. It was not a party question; it was a constitutional question. He denied that it had ever been treated in that House as a party question. It was a great constitutional question. And he (Lord St. Leonards) should have expected that the noble and learned Lord (the Lord Chancellor) would have entered upon its consideration in a spirit more generous and liberal; and that feeling that their Lordships must all have the same object, to come to a decision upon a great constitutional question, the noble and learned Lord would have met the question fairly, stating the sort of evidence with which the House might proceed to deal. No man, in or out of their Lordships' House, could say, that after all the discussion and investigation which had taken place, anybody expected that the question of authority could be carried beyond the evidence already upon the table. He hoped, therefore, the noble and learned Lord (the Lord Chancellor) would make the admission asked of him, and thus dispense with the necessity of a further search for the purpose of negative evidence.

THE LORD CHANCELLOR

said, he had been asked whether he required further search? If by that it was meant to ask him, whether, in the argument that would ensue, he should urge that no further search had been made, he was prepared at once to admit that it would not be at all necessary for his argument to urge that point. For himself, individually, he should require no such search, but should assume that the search had been made; but he had no power to bind other parties by such an admission. He should be extremely glad to expedite the discussion. Nothing would be more unseemly or inconvenient than to interpose the least delay beyond what was absolutely necessary.

LORD CAMPBELL

said, after that admission on the part of the Lord Chancellor, he would strongly advise his noble and learned Friend (Lord Lyndhurst) to close his case, and to dispense with any negative search.

THE LORD CHANCELLOR

observed, that it must at the same time be well known to noble Lords on both sides of the House, that there was a great number of grants and creations in modern times, and he would assume that their Lordships would allow that, and treat it as a matter of fact. He had that morning received a letter from the Deputy Keeper of the Rolls in Dublin, informing him that he had a grant there for life, only of so late a date as that of the reign of Philip and Mary. He had promised to send a copy of it. The present case would not, therefore, amount to a negative search if it should turn out that there was such a grant; and it would be competent to produce it. After all, it would only amount to this, that there was a precedent within 300 years instead of 400 years.

LORD ST. LEONARDS

said, he believed the case referred to by his noble and learned Friend related to the Irish peerage, and not to the English peerage.

LORD LYNDHURST

My only desire, my Lords, is to procure all the evidence that can be obtained. I have no other motive than to enable your Lordships to arrive at a just conclusion.

LORD ABINGER

said, there was a rather curious case mentioned by Lord Coke, in his "Institutes," of creation of a man by patent a spiritual Lord of Parliament to himself and his successors; and the patent being declared void: and the question would be, whether this had been done by Parliament. As he understood that, upon the first discussion on this subject, the jurisdiction of Parliament to inquire into a point of this nature had been disputed, and the absolute power of the Crown to confer a right to sitting in this House bad been maintained, the case he had mentioned might be one of some importance, and might be worth referring to. It would be found in the Fourth Book of Coke's Institutes, p. 45, and was as follows:— One rare and strange creation of a lord regular of Parliament we cannot passe over, which was that King H. 8, in the fifth year of his reign, by his letters patents under the great seale, did grant unto Richard Banham, abbot of Tavestock, in the county of Devon, being of his patronage, and to the successors of the said abbot, 'Ut eorum quilibet qui pro tempore ibidem fuerit abbas, sit et erit unus de spiritualibus et religiosis dominis Parliamenti nostri, hæredum & successorum nostrorum, gaudend' honore, privilegio & libertatibus ejusdem.' By that which hath been said, it appeareth that the creation of a regular Lord of Parliament was voide, for that the abbot was neither baro, nor had baroniam, &c. And if the King might create abbots or priors lords of Parliament in this manner, by the same reason he might create deans and archdeacons lords of Parliament, which without question he cannot.

EARL GREY

said, after what the noble and learned Lord (the Lord Chancellor) had stated, the noble and learned Lord opposite (Lord Lyndhurst) could give notice to take the discussion on Thursday; meanwhile the search could be carried on; and if it resulted in the discovery of anything material the discussion could be postponed for its production.

LORD BROUGHAM

thought the delay of a few days of far less importance than that the evidence should be incomplete.

LORD ABINGER

concurred in this opinion, and thought the saving of a few days was of no consequence compared with the advantage of obtaining full information upon such a question. The question was, in fact, whether an hereditary peerage was to be upheld. It was evident that if this patent was supported no legal personage would have in future an hereditary peerage. And if not legal personages, why military or naval? The consequence of this would be, that the House would be soon divided into two sets or classes of Peers, one holding their dignities only for life, the other transmitting them to their heirs. It was impossible in such a state of things that the latter class could long sustain their hereditary privileges. The Crown appointing the life Peers—that is to say the Minister of the day—they would, in fact, be the nominees of the House of Commons. The result would be, that the Crown on the one hand, and the House of Commons on the other, would come into collision with the hereditary peerage. How long it could be sustained under such a system their Lordships could judge. The very essence of the constitution of their Lordships' House was the hereditary quality of the peerage, which infused into it a certain element of stability analogous to that which belonged to an hereditary monarchy, and could not arise from mere personal character, influence, or wealth. Considering the nature of the question at issue, it was most marvellous that the noble and learned Lord opposite (the Lord Chancellor) should have denied the jurisdiction of their Lordships to inquire into the validity of this creation.

THE EARL OF DERBY

thought the House generally was disposed to adopt the course which would most facilitate the proceedings, and at the same time not expose them to the charge of neglecting duly to consider this question. In all probability the further evidence to be produced would not have a very material bearing upon the case, and he was informed that the gentleman who would be directed to search for further precedents, and establish, if he might so say, the negative, would be enabled to make that search and produce the result of his inquiry by two o'clock on Friday. Their Lordships had intended to proceed with the discussion on Thursday, but perhaps the delay of a single day would not be important; and he would, therefore, suggest that they should meet on Friday to receive the additional evidence and then proceed to the discussion of the question. His noble and learned Friend would probably be able to give in either to-day or to-morrow the terms of the Resolution which he intended to move.

THE LORD CHANCELLOR

said, it would be convenient if the noble and learned Lord (Lord Lyndhurst) would state the terms of the Resolution or Report he intended to propose.

LORD LYNDHURST

stated, that at the conclusion of the evidence he proposed to move that the Committee do agree to the following Report— The Committee have, as directed by the House, examined and considered the Copy of the Letters Patent purporting to create the Right Honourable Sir James Parke, Knight, a Baron of the United Kingdom for Life; and they report it as their Opinion, that neither the said Letters Patent nor the said Letters Patent with the usual Writ of Summons issued in pursuance thereof, can entitle the Grantee therein named to sit and vote in Parliament. The noble and learned Lord stated that this notice was given, of course, on the assumption—which after what had passed would be allowed to be reasonable—that the further search which was to take place would throw no additional light upon the subject. Their Lordships already knew what had occurred from the time of Edward IV.

LORD GLENELG

said, that in the discussion upon this question the two points raised wore the legality and the expediency, or the constitutional nature of this exercise of the prerogative. Now, it was of the utmost importance that they should proceed with due deliberation in considering so grave a subject, and he therefore thought it would be very satisfactory, as there had been such a difference of opinion among high legal authorities upon the question of legality, if they could obtain the assistance of some of the learned Judges. He begged to ask the noble and learned Lord (Lord Lyndhurst) whether he proposed to ask for that assistance—though he (Lord Glenelg) would not have their Lordships bound by the opinion of any person if it was contrary to that entertained by themselves?

LORD LYNDHURST

In answer to the question of my noble Friend, I beg to I say that I have no intention of calling in the assistance of the Judges. It is not a question for them to decide. They have nothing to do with the right to sit and vote in this House. They may give an opinion as to the character and operation of the patent in other respects; but as to the right to sit in this House they have nothing to do with it. There was a case in the reign of Henry VI. in which they were consulted, not merely as to the validity of a patent, but as to the right to sit and vote in this House; and they gave their opinion on the first part of the question, but said that the other part of it was out of their jurisdiction, and pertained to the Peers in Parliament.

LORD CAMPBELL

My Lords, if this were a question as to the construction of an Act of Parliament I should desire to have the assistance of the Judges. Such was the question that arose in the Brandon case, which was on the construction of the Act of Union. There the Judges were properly consulted, for the question turned on the construction of a statute. So in peerage cases, where questions have turned on the effect of an attainder, or on a descent. These are questions of common law, and the Judges have been called upon to assist. But where the question depends upon the lex et consuetudo Parliamenti the Judges have disclaimed all jurisdiction, and have said, more than once, they were not competent to pronounce an opinion; they have referred such questions to the Earl Marshal, the Lord Constable, or the House of Lords, who are the sole judges of their own privileges. Moreover, there is another objection to consulting the Judges, on the ground of the delay that would be caused by calling them in. It would be impossible to have a decision until the end of the Session. They were about to set out upon their circuits, and it would be a long time before they could hear the case and give their opinion.

LORD ST. LEONARDS

said, that in the Brandon case, to which reference had been made, the Judges attended in order to hear counsel and argue the point, which turned upon the construction of the Act of Union with Scotland. The question was put whether the opinion of the Judges should be taken and decided in the negative; and the House then proceeded to a decision upon the subject without the assistance of the Judges: and in his opinion, that case afforded a strong precedent against calling in the assistance of the Judges in the present instance.

LORD BROUGHAM

said, that what was stated by his noble and learned Friend with respect to the Brandon case was perfectly correct, but he had omitted to mention the sequel to that case. Seventy-one years afterwards the same case arose, and upon that occasion the decision arrived at by their Lordships' House, and one which formed the law upon the subject now, was entirely contrary to the previous decision; and that decision was the one now acted upon.

Committee adjourned to Friday next.

House resumed.