HL Deb 22 February 1856 vol 140 cc1152-218

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.

Mr. THOMAS EDLYNE TOMLINS was called to the bar and examined by LORD LYNDHURST, as follows:—

Have you examined the Records of the Rolls Court?

I have examined them.

For what period?

From the first of Richard III., inclusive, to the end of the reign of Queen Mary.

Have you examined them with care and attention?

With as much care and attention as I could.

How many cases of peerage are upon those Rolls?

I cannot precisely recollect.

About the number?

Seventy or eighty.

Have you found any instance of a life peerage among them?

Yes; in the 25th of Henry VIII.

What case is that?

The case of Maurice and Donacius O'Brien, upon whom was conferred the title of Earl of Thomond for life, in the 35th Henry VIII.

A grant of the Earldom of Thomond:—Is there not also a grant to Maurice of the Barony of Inchiquin, to him and his heirs male?

I cannot recollect. I tried to ascertain, but I was told it had been taken to the House.

Has it been laid on the table of the House?

I believe it has.

Have you found any other instance but that?


Have you found time to examine the Rolls down to the date you mentioned?

No, I have not.

Have you been industriously engaged in it since you began the examination?

Yes, day by day, without any intermission.

Have you found no other instance of a grant for life during the whole of that period?



I may inform your Lordships that, with all his industry, the witness has not been able to carry the examination beyond the reign of Queen Mary.


I do not know whether it may be convenient to my noble and learned Friend that I should state that I and my Friends raise no objection on the score of further search being made for these grants. We know of none except that we know of many, I believe eighteen grants to women, and a great many for life, with remainder to collateral branches. I have not the particulars of these, and have not made any search. I do not think it necessary.


My Lords, I am not sure that I shall be able adequately to perform the task which I have undertaken,—whether my strength will be sufficient for that purpose; but having undertaken that task, I shall perform it to the utmost of my power. I shall confine myself as strictly as possible to those matters which appear to me to bear directly upon the matter now before your Lordships, and which, I think, will enable your Lordships to form a correct opinion upon this important constitutional question. I shall not, I hope, find it necessary to take up very much of your Lordships' time, be- cause the subject has been so fully discussed already, and because there are so many of your Lordships who are intimately acquainted with every branch of the subject.

In the first place, I find it necessary to direct my attention to the subject of the jurisdiction of your Lordships on this question. I should have been satisfied to have kept silent upon that subject, resting on the circumstance that your Lordships have affirmed your jurisdiction by consenting to refer the subject to a Committee of Privilege, were it not that my noble and learned Friend opposite has upon more than one occasion denied that jurisdiction, and, permit me to say, has denied it in a tone and manner which I did not think at the time very respectful to your Lordships; for he intimated, obscurely I admit, but still in a manner intelligible to me, that your Lordships' decision, whatever it may be, will be entirely unavailing. The other House of Parliament, my Lords, stands in a more favourable situation than we do when questions of privilege are raised. The Speaker of the other House of Parliament is the guardian of the privileges of the House and of its authority; and, if those privileges are invaded, he is there for the purpose of defending the character of the House. I think it extraordinary that the noble and learned Lord, having recommended a measure which almost all your Lordships have considered an improvident and rash measure, should now, when we stand forward to condemn it, deny that we have anything to do with the subject, and to declare that our censure of it will be altogether unavailing and without any practical result; that we have no jurisdiction in the case, that it is ultra vires of this House, and that as it touches the prerogative, we cannot give effect to the opinion which we may form upon it. But, my Lords, there is something even more extraordinary than this. A learned person, who has never had a seat in this House, but is waiting to have your Lordships' doors opened to admit him:—who knows nothing of your Lordships' privileges and your rights—who has never had an opportunity of becoming conversant with them—he tells us dogmatically that we are doing that which we have no right to do, and that whatever judgment we come to in his case will be unavailing; and he instructs my noble and learned Friend opposite to communicate his opinions to the House for the purpose of influencing and controlling our proceedings. But, my Lords, if this opinion is well founded, there is an end to the independence of your Lordships' House. The Minister for the time being may trample upon your rights and privileges, and you will lie prostrate before him. But, my Lords, I undertake to state and to prove, in opposition to the opinion of the noble and learned Lord, that there is no foundation for the opinion which has thus been expressed. My Lords, a case has been put before your Lordships which, if it be well considered, is decisive as to the jurisdiction of your Lordships; but I will advert to that case to show that this privilege which we are now considering is admittedly part of the independence of your Lordships' House. My Lords, everybody knows that an alien has no right whatever to sit in your Lordships' House. At the same time everybody knows the Crown has a perfect right to confer a peerage on an alien. Suppose that an alien had obtained a writ of summons and presented himself at your Lordships' bar, are your Lordships, knowing that he has no right to enter your House, and that if he did so it would be a violation of the law—are you quietly to suffer him to take his seat without interference? Are we all to be passive spectators of the violation of the law, and to be co-operators with him in the violation of the law? Is not the very statement of such a case sufficient to satisfy your Lordships, beyond all doubt, that you have a right to investigate the title by which a Peer claims admittance into your Lordships' House? I will put another case equally striking. It has been said by Lord Coke—I know not on what authority—that the Crown cannot grant a peerage for years; and he gives a reason for it which every lawyer knows—a reason extravagant and absurd. But suppose that a person created a Peer for a term of years comes to the bar and brings his writ of summons. Suppose your Lordships look at the patent and find that it contains a peerage for years, are you to admit him to take his seat, and suffer him to violate the law, and to become, indeed, co-operators with him in the violation of the law? That would be abrogating your right; and would it not be your duty to prevent him from taking the oaths and his seat among your Lordships? My Lords, look at the form of proceeding. When a person comes to the bar with his patent of creation and his writ of summons, what is the first step that is taken? The first step is to read the patent. Why is that patent read? For what purpose is it read, if your Lordships are to exercise no opinion with respect to it? Or, is it not read that your Lordships may have an opportunity of considering its validity and of acting according to the opinion you may form respecting it? I consider these cases very decisive as to your Lordships' authority and jurisdiction. My Lords, it is the right and duty of your Lordships, and of every assembly summoned in a similar manner, to see that the assembly to which they belong is properly constituted. If a writ of summons to which a party is entitled is withheld, your Lordships have a right to insist that it shall be issued. If, on the other hand, a party appears at your bar with an invalid patent, your Lordships have an equal right to prevent his admission into this Assembly. In both cases the right is the same, and it is your duty as well as your right to see that the House of Peers is properly constituted. It is asked, how are these rights to be enforced? I think my noble and learned Friend opposite has hinted that we have no means of enforcing them. My Lords, I will explain that in a few words. If a writ of summons is improperly withheld, your Lordships can insist upon its being issued. You may address the Crown for that purpose, if you think proper. If that address to the Crown is unavailing, there is a remedy that in a remarkable case has been resorted to, and which was effectual to attain its object. The Peers in Parliament in that case refused to proceed to business until the writ of summons was issued, and until the House was properly constituted; and the historian who records this fact says that the means adopted were so effectual that the King was induced to issue the writ of summons, and that the abuse of which they complained never occurred again. That is a remedy when the writ of summons is withheld. On the other hand, when a party has obtruded himself upon the House, in which he has no right to sit, the remedy is equally plain. It is your duty to direct your officers to refuse to administer the oaths, or allow the party to take his seat. So much for that part of the question.

Now, my Lords, with respect to the precedents in the case. My noble and learned Friend no doubt remembers he told us there was only one precedent adduced—the case of the Hamilton and Brandon peerage. I think that your Lordships can hardly have forgotten the kind of triumphant air with which he stated that he would soon dispose of the authority of that case. I was curious to know by what means my noble and learned Friend could get rid of the obligation of that precedent. I followed him throughout his argument, and he concluded his speech, leaving the obligation of the authority of that case wholly untouched. What was the case? A peerage of Great Britain had been granted to the Duke of Hamilton, a Scotch Peer. The question was, whether that peerage was valid or invalid. It was contended that a Scotch Peer since the Union could not receive an English peerage. It was argued that such a peerage was quite contrary, both to the language and spirit of the Act of Union. The question was discussed with great zeal and earnestness. If your Lordships look to the division, you will see that the discussion attracted great attention, and that the House came to the conclusion that the peerage was invalid. The party who thought he was entitled entered a protest, which goes into the minutest particulars of the objections taken. The question in this case is, not whether the decision of the House was right that the peerage was invalid, but as to the form of proceeding and the course adopted by your Lordships in having upon your own authority investigated the subject and decided upon your own privileges. During the whole of that discussion, amid all the zeal and warmth and energy with which it was debated, not one single observation was made against the course of procedure. I have looked minutely into that protest, and I have found that, although every possible objection was taken, not one single objection was taken as to the authority of the House, or to the course of proceeding that was adopted on that occasion. For seventy years that decision was acquiesced in; but it was then decided that the judgment was invalid, and that the peerage was good. The decision of the House was reversed. But even then, when it came on again for discussion, not a single objection was taken to the course of proceeding, but the judgment pronounced by the House was reversed. How has the noble and learned Lord destroyed that precedent? In the Brandon case the question was, on two separate occasions, raised in a very marked manner as to the control of this House over the writ of summons. What course did the House take on that occasion? It referred the question to the Committee of Privileges. On two occasions petitions were presented to the House, and in both they were referred to the Committee of Privileges, which investigated the title of the claimant. The result was, that the House was not satisfied with the title, and upon the report of the Committee the petition was on the first occasion dismissed. There is another case to which I am particularly desirous to allude, in consequence of some reference having been made to it by the noble Lord the President of the Council; I allude to the case of the Earl of Banbury. One of the claimants to this peerage had the misfortune to be engaged in a duel, and came by petition before your Lordships' House, claiming to be tried by his Peers. The House referred the case to the Committee of Privileges to investigate his title. They said he had not made out his claim to be a Peer, and dismissed the petition. The question, in another shape, came before the Court of Queen's Bench, and Lord Chief Justice Holt took upon him to say that this House had no jurisdiction in the matter:—he said the case was coram non judice, and that we had no authority. Now, my Lords, I am anxious to point out the erroneous conclusion arrived at by Lord Holt on this occasion, because I believe my noble and learned Friend, and other noble Lords, have placed considerable reliance on his decision. Nothing could be more erroneous in principle than that decision was. It is clear that you had a direct jurisdiction where an application was made to you by a person claiming to be a Peer. It is for this House only to say whether such a person should be tried by his Peers or not. It is also a clear point of law, to the accuracy of which every lawyer will subscribe, that where any tribunal has a jurisdiction in a principal matter, it has also a jurisdiction incident to it over every correlative matter that belongs to it. It is clear, therefore, that Lord Holt's opinion, if he really expressed it, was erroneous, for the House had clearly jurisdiction in this case as to the principal matter—namely, whether the person claiming had a right to be tried by his Peers, and, having that jurisdiction, they had a right to inquire whether the claimant was a Peer or not. Perhaps I should hardly have ventured to express this opinion had it rested on my authority alone, but it is confirmed by one of the highest legal authorities that ever sat in your Lordships' House—I mean Lord Redesdale. I shall read an extract from an opinion given by Lord Redesdale in the Banbury case—not the Banbury case to which I have just alluded, but another which came subsequently before the House. He said— This Resolution"—that is, the Resolution with respect to the application to be tried by his Peers, which was refused, as I have stated—"passed as it was with great solemnity, ought in my opinion to have all the force of a judicial decision. It was denied by Lord Holt. No doubt can be entertained of the jurisdiction of the House, for surely it had a right to determine whether the petitioner was entitled to be tried as a Peer, and this could not be done without ascertaining whether he was legitimate. Again— I think Lord Chief Justice Holt was mistaken, if what fell from him is correctly reported, otherwise the Crown might refuse a writ in a subsequent Parliament, to any Peer now sitting in the House. Again he says— I cannot approve of the opinion of Lord Holt in this case. The House acted with great propriety. It had been said that the Resolutions of the House on the petition were extra-judicial; that, the object of the petitioner not being to establish the legitimacy of the claimant, the House had nothing to do with it. Now, I apprehend it is upon that opinion of Lord Chief Justice Holt, who stated upon that occasion that the House had no jurisdiction in the matter, that my noble and learned Friend (the Lord Chancellor) has relied in saying that we have no authority to decide this question. I have stated what I consider to be the principle that justified the decision of the House on this case. I have shown that that decision was impeached by the authority I have mentioned—namely, Lord Holt; and I think I have shown that the decision at which he arrived was erroneous; and this is one of the cases by which my noble and learned Friend is guided on this occasion. Several other cases might be cited from the Journals, all of which go to establish the fact that this House has a right, on application or petition, to be admitted by a writ of summons, to inquire into the title, and pronounce a judgment accordingly. [The LORD CHANCELLOR: What are the cases?] My noble and learned Friend will find the cases in the Journals of the House. One of them is that of the Earl of Lincoln, who came to the bar with a writ of summons. There was some reason to object to that writ; it was suggested that he was not entitled. And what did the House do? It referred the matter to the Committee of Privileges, and directed the Committee to examine into his title and pedigree. The Committee accordingly entered into an examination of the patent and the pedigree of the claimant, and, having reported in his favour, Lord Lincoln was allowed to take his seat. I could quote other cases, but I am afraid I should not have sufficient strength to go through them. I may allude to one case, however, in which the son of a Peer was called to this House by one of his father's baronies during the lifetime of his father. He died in the lifetime of his father, and the question was, whether his son was entitled to succeed to the barony without the intervention of the Crown. It was submitted, without any intervention of the Crown, to the Committee of Privileges, which decided in favour of the grandson's claim, and the claimant took his seat accordingly. All these cases show that where a person is entitled to a seat in this House, and the Crown does not interfere to assist them, he may petition the House for a writ of summons. The House, through the Committee of Privileges, investigates the claim, and acts accordingly. We know that particular persons have been disqualified by Act of Parliament from sitting in either House. In any of these cases the Crown has a perfect right to grant a peerage to the individual, but that grant of peerage does not give him a right to sit in your Lordships' House. If he should be summoned, your Lordships would immediately investigate the case, and say to him, "You have no right to sit here: we refuse to let you be sworn and take your seat." Indeed, from all the cases I have referred to, the matter appears to me to be so clear that my noble and learned Friend cannot possibly give a satisfactory answer to what I have brought forward. I say, then, on the authority of the decisions I have referred to, that in principle we have a perfect right to proceed with this case, notwithstanding the peremptory tone in which the noble and learned Lord has denied it. My Lords, leaving this part of the case, to which I have adverted at such length in consequence of the peremptory opinion expressed by my noble and learned Friend opposite, I will now proceed to the consideration of the other and more material part of the question. A great deal has been said about the authority of Lord Coke. We see him through the haze of distant time, which magnifies his proportions; but I admit he was a great lawyer. At the same time, I am bound to state, what is well known to every one conversant with the subject, that he was never considered a great authority on Parliamentary or constitutional law. Here, again, I do not wish to rely upon my own personal opinion alone. I will read what Lord Redesdale, an eminent authority on a subject of this kind, says of Lord Coke. Lord Redesdale writes:— I have a great respect for the memory of Lord Coke, but I am ready to accede to an assertion made by some of his contemporaries, that he was too fond of making the law instead of declaring the law, and of telling untruths to support his own opinions. Indeed, an obstinate persistence in any opinion he had embraced was a leading defect in his character. And, speaking of a certain dispute in which Lord Coke was engaged with Lord Ellesmere, he says— This dispute furnishes us with a very strong instance of his forcing the construction of terms, and making false definitions, when it suited his purpose to do so. Such is the character given to Lord Coke by a noble and learned Lord who deservedly stood high for legal knowledge in the opinion of your Lordships and of the country, and I believe he was so held by many of his contemporaries. In the view which I take of Lord Coke I am supported by corresponding facts. I may recall to your recollection the many important instances in which, with respect to the creation of peerages and other questions, his judgments have been since reversed. I stated two of them upon a former occasion, and could add many more if it were necessary for my purpose. But first let us consider the dictum of Lord Coke upon which so much stress is laid. The noble Earl opposite (Earl Grey) states, in one of his intended Amendments, that the right of the Crown to create peerages for life rests upon the highest legal authority, which is supported in substance by many corresponding instances. It has sometimes happened—not unfrequently indeed—that intelligent persons not conversant with legal inquiries are apt in questions of Parliamentary or constitutional law to mistake show for substance; and I am bound to say that my noble and learned Friend opposite on a former occasion did produce his authorities, or his seeming authorities, with so much confidence and with so plausible an air that it was well calculated to mislead the noble Earl. But I will show, before I sit down, that all these pretended authorities depend upon the dictum of Lord Coke. We in the profession of the law all know that when an opinion is cited in a court of justice, it is over and over again asked, however eminent the authority may be, what authorities, what cases does he produce in support of his opinion? Lord Coke cites no decisions—no instances—in support of his dictum; while I will undertake to satisfy your Lordships, with a clearness amounting almost to demonstration, that in no case, without the authority of Parliament, has the Crown created a Peer for life so as to enable him to sit in this House. I pledge myself to prove it only short of demonstration, always going upon the cases before us. Lord Coke, then, laid down the doctrine we have heard, citing nothing to support it. Who was the next authority adduced by my noble and learned Friend opposite? Chief Justice Comyn. What was the nature of his evidence? He is the author of a digest of the law; but his digest is nothing more than a collection of cases and decisions arranged under different heads. What has he done bearing upon the present question? He has inserted, I believe, under the head "Prerogative," or some similar head, this very dictum of Lord Coke, to which he puts the name of Lord Coke and the page, but he makes no observation upon it whatever. Do you call that an original authority? Was Chief Justice Comyn called upon to discuss and consider the question? His business was simply to insert what he found in Coke as the opinion of that learned person. So much for that authority. But we come next to Justice Blackstone. My noble and learned Friend opposite almost smiled when he appealed to the authority of Blackstone. What did Blackstone do? He extracted the opinion of Lord Coke and inserted it in his popular work; but he never entered into the question, never discussed it; he assumed it upon the bare authority of Lord Coke. Such are the authorities produced by my noble and learned Friend. They do not support his opinion; they merely quote the dictum of Lord Coke, adding nothing themselves. But then my noble and learned Friend brings forward a curious authority—the most curious, indeed, ever attempted to be palmed off on any audience—founded upon an omission by Sir Matthew Hale. Sir Matthew had a volume of Coke upon Littleton, in which he was in the habit of making notes from time to time on the margin; but there happens to be no note on the passage relating to life peerages; and, therefore, my noble and learned Friend comes to the conclusion that Sir Matthew Hale was entirely of the opinion of Coke, and so did not think it necessary to make a note. Will my noble and learned Friend repeat his argument drawn from the omission of Sir Matthew Hale? But Selden is said to be an authority. He was cited as such by the Lord President of the Council. But he does not carry the case a bit further, for he simply says that peerages were generally granted as inheritances, but in some instances they had been granted as estates for life. That is perfectly true; but look at the cases to which Selden refers. One is the Countess of Buckingham, a woman; another the Marquess of Dublin, whose case is upon your Lordships' table. The Marquisate of Dublin, though it was a peerage for life, was created by the authority of Parliament. It has nothing to do, therefore, with the question at issue. My noble and learned Friend has also referred to Lord Redesdale in support of his argument; but there he is equally at fault. Lord Redesdale states, almost in the words of Selden, that peerages are generally granted as inheritances, but that they have been granted for life. Unquestionably they have, as proved by the cases on your table; but I will show that a peerage for life has in no instance been granted except upon the authority of Parliament. Most, if not all the cases which my noble Friend has stated are founded solely on the dictum of Lord Coke, whose authority has been questioned. I referred on the last occasion to a note as the note of Mr. Hargrave. Mr. Hargrave edited the first part of Lord Coke's book. Mr. Butler, a man equally learned, or, perhaps, more learned in constitutional law, edited the second part. This note is in the early part; and, in looking at it I supposed it was the production of Mr. Hargrave. It turns out to be the production of Mr. Butler. It was inserted in the nineteenth edition, edited by Mr. Butler, and the publisher stated that Mr. Butler had added the notes which were marked by capitals. This is one of those notes, and it combats most effectually the doctrine of Lord Coke. Mr. Butler said that it was in the very nature of the peerage to be hereditary, and he did not believe a single instance of a person sitting in this House under a peerage for life could be found. As far as my own researches go I can vouch that there is no such instance, except where the peerage was created by the authority of Parliament. My noble and learned Friend (the Lord Chancellor) refers to Lord Shaftesbury and Lord Nottingham, and he says Lord Shaftesbury was not a good lawyer. I admit the education of Lord Shaftesbury was of a character to prevent his being a good lawyer; but he was a great Parliamentary and constitutional authority, and his opinion would be entitled to great weight. My noble and learned Friend read a short extract from Mr. Macaulay's History, with reference to the character of Lord Shaftesbury, stating what I have stated; and here, my Lords, I am tempted to throw a little sunshine upon this dull discussion, by quoting the words of Dryden, descriptive of Lord Shaftesbury— In Israel's court ne'er sat an Abethdin With more discerning eyes, or hands more clean, Unbrib'd, unsought, the wretched to redress; Swift of despatch, and easy of access. Oh! had he been content to serve the Crown With virtues only proper to the gown, Or, had the rankness of the soil been freed From cockle, that oppress'd the noble seed, David for him his tuneful harp had strung, And Heaven had wanted one immortal song. It was not Lord Shaftesbury who alone pronounced the decision in the case to which reference has been made; Lord Nottingham, also, took part in it—one of the greatest Chancellors that ever sat in the Court of Chancery. Permit me to make this observation upon Lord Coke—that Lord Coke wrote 200 years ago; and if I know anything of his character and turn of mind, had Lord Coke written in the present day, after 200 more years had passed without the creation of a peerage for life, he would have said desuetude had destroyed and taken away the prerogative, and it was one which could not now be exercised.

It is not a very inviting task I am about to perform, but I must direct your Lordships' attention to those instances in which peerages for life have been created. The first case referred to in the papers on your Lordships' table is that of the creation of a foreigner, Guichard D'Angle. He had no right, nor could he by the law of the land sit in Parliament. An alien can never sit in either House of Parliament. It is clear, therefore, he never sat; and it is not only clear he never sat in Parliament, but a few months after the creation the patent, or charter of appointment, was cancelled—vacated, as was stated in the margin. He died a few years afterwards; but summonses were issued subsequently, that being the ordinary act of the clerks of the House, who often issued summonses after the death of the persons to whom they were directed. A very curious comment is made upon this case by my noble and learned Friend. He says this foreigner was created Earl of Huntingdon for life, and the charter referred to another charter, providing a certain pecuniary grant to maintain the dignity, and, though "vacated" is written in the margin, that it referred to the other charter. If any of your Lordships look at the place where the note is written, I feel confident you must come to the conclusion that it relates to the charter upon which the note is subscribed. A very curious and ingenious device seems to have been resorted to by translating "isti" in the note as "those," though afterwards in the body of the charter, it is translated, as it should be, "these." I venture to assert that the marginal note relates to that charter, and that charter alone, and that the peerage was vacated. The next charters are two, which I shall take as one, the Marquis of Dublin and the Duke of Ireland—titles which were granted to the same person. But by looking into those charters, it will be found that the limitation for life relates not to the honours, but to the estates granted for the purpose of supporting those honours; and, moreover, it is distinctly stated that the charters were passed with the assent of the Lords Spiritual and Temporal and Commons in Parliament assembled. These words, though in a charter, have been decided by the highest legal authorities to give the document effect equal to an Act of Parliament. [Lord CAMPBELL: He was also Earl of Oxford.] My noble and learned Friend reminds me that this Peer was Earl of Oxford; but if it had not been so, no one who knows anything of the law of the country will care to deny that if these charters were creations of peerages for life, they were passed with the assent of Parliament. I need not refer to all the cases, for I believe my noble and learned Friend will agree with me that these significant words are to be found in all the patents or charters creating peerages for life. I do not find any assent to that statement from the noble and learned Lord opposite.


About half of them.


I will show that the whole of them are. Take the case of the Duke of Lancaster, which was a grant of the Duchy of Aquitaine for life; but that was made by the King, not in his character as King of England, but as King of France, and homage was to be done him as King of France. That also was expressly confirmed by the authority of Parliament. In the case of the Duchess of Norfolk, also, there was the concurrence of Parliament, although being a woman that case is not a precedent. The Duke of Bedford and Humphrey Duke of Gloucester were the King's brothers. They were created for life; but the charters expressly provide that it was with the authority of Parliament. In the case of the Earl of Cambridge, there were no means of knowing exactly whether that peerage was for life or in fee; but there is every reason to believe that the creation was made with the authority of Parliament; for there is a short memorandum in which it is stated that the Dukes of Bedford and Gloucester, and the Earl of Cambridge, were all commanded to take their seats in the same Parliament and by the same authority. So, again. Thomas Holland, the King's uncle and Earl of Dorset, was created Duke of Exeter for life in Parliament. The last case to which I shall refer is that of Sir John Cornewall, who was created Baron Faunhope for life. The circumstances of this creation are somewhat different from the others, and on that account it did not require that the authority of Parliament should be expressly set forth in the charter. Your Lordships are aware that when a writ of summons is directed to a party, and that party appears, and is allowed to take his seat, that confers a title to him and his heirs. The object of the writ of summons is to have the party personally before Parliament, so that he may he clearly identified. But when the King is present in Parliament personally, and the party appears, a summons is unnecessary, the object being accomplished. Sir John Cornewall appeared in the Parliament when the King was present, and the King invested him with the robe and other insignia, and directed him to enjoy all the honours, dignities, and privileges of the other Barons. Here there was no charter used; there was nothing to show and support the title assumed, but the Parliamentary Roll and the Parliamentary records describing the ceremony of investiture. I have now gone through all the cases bearing upon this point; and your Lordships will observe that in no instance is there an estate for life created in a peerage without the consent of Parliament directly expressed or implied. When, therefore, the noble Earl (Earl Grey) in his Resolution talks about no peerages for life having been created for 400 years, and, as an inference, leads the House to believe that the creation of Baron Wensleydale for life is reprehensible, surely, when he finds that in no instance has an estate of dignity for life been created by the Sovereign without the consent of Parliament, the only conclusion at which he and all of us must arrive is that what is now attempted to be done never was done at any period of the history of this country. What, then, is there for the Government to rest their justification on? Nothing, absolutely nothing:—there is not a shadow, not a straw to save my noble and learned Friend from sinking. I have before observed, and I would enforce it upon your Lordships' minds, that long-continued usage is the basis and principle of our laws and our constitution. It is upon that our whole system depends. Look at the succession to the Crown. It is hereditary; but the descent does not follow the rules in ordinary cases, but depends entirely upon long-continued usage. The privileges and rights of Parliament also rest upon the same basis—the hereditary constitution of your Lordships' House rest on the same basis. The succession to the Crown itself depends upon the law of usage; the rights and privileges of the Queen's Consort and of the Prince of Wales—though the latter, in his character of Duke of Cornewall, derived his title and estates from the statute law—depend on the same principle. If you break in upon that principle, you destroy it. I exhort your Lordships to consider well what may be the consequences before you consent to any invasion upon this long-established law of usage. Let your Lordships remember that the constitution consists of three estates—of King, Lords, and Commons—united in the State, but each independent of the other, and producing harmonious action by the balance of their powers. But I will put it to your Lordships whether it is likely that this harmony can be continued, or this balance of power preserved, if one of the Estates can exercise such a power as is now asserted against the other? Will not the exercise of such a power, by the Crown, overthrow the balance and destroy the harmony of the whole; and when that is accomplished, what becomes of the purity, freedom, and independence of our boasted constitution?

It has been urged as a kind of justification of the measure we are now considering, that it has become a matter of necessity, for the purpose of the due and proper exercise of the judicial power of this House and the due administration of justice. Give me leave to tell your Lordships that, if there be any defect in that tribunal, you have a remedy in your own hands. About two or three years ago I ventured to point out the course which might be pursued in that respect, and referred to the issue of "writs of assistance," by which the House could call in common law or equity Judges to assist them; and if some of the Judges of Scotland were made Privy Councillors, they may also be called in to assist in the judicial business of this House relating to that portion of the kingdom.

But, my Lords, the principle upon which I proceed—the old constitutional principle—is, that I will give the Crown no power that is capable of being abused, unless some great and overruling necessity can be shown to exist. In the present case, my Lords, no such overruling necessity has been shown to exist. I look with all constitutional jealousy, and not with confidence, to those who are the depositaries of power. I remember it was over and over again said by one of the most illustrious statesmen England ever produced, that jealousy, and not confidence, was the maxim on which the British constitution was based. I believe the noble Marquess opposite (the Marquess of Lansdowne) is a decided, uniform, and constant adherent to that principle. Jealousy and not confidence is the eternal governing principle of the British constitution. It is true, my Lords, that the danger of any undue exercise of its prerogatives by the Crown may at present be remote; but how long the present state of things may continue, how long it may be before a storm may arise, when important questions may start up, and the passions may be aggravated and excited, no one can venture to foretell. A day may arise when an arbitrary monarch, who may be desirous of increasing his prerogative, may again sit on the throne, and I am therefore anxious, my Lords, to guard against any such danger. We all remember, in the reign of James II., the conspiracies of that monarch, who by cabals was most unconstitutionally plotting the destruction of the living constitution. My Lords, the time has been when there have been men who have had the determination to establish an arbitrary monarchy. We know that James II. determined to repeal the Test Act, and to violate the constitution for the purpose of obtaining a pliable House of Commons; but when he obtained it the question arose how he should deal with the House of Lords. I will read an extract from Mr. Macaulay's History, which is pertinent to the present question, and will serve to show what difficulties may arise against which it is our duty to guard ourselves beforehand. He says— By such means the King hoped to obtain a majority in the House of Commons. The Upper House would then be at his mercy. He had undoubtedly, by law, the power of creating Peers without limit; and this power he was fully determined to use. He did not wish—and, indeed, no Sovereign can wish—to make the highest honour which is in the gift of the Crown worthless. He cherished the hope that, by calling up some heirs apparent to the assembly in which they must ultimately sit, and by conferring English titles on some Scotch and Irish Lords, he might be able to secure a majority without ennobling new men in such numbers as to bring ridicule on the coronet and the ermine. But there was no extremity to which he was not prepared to go in case of necessity. When in a large company an opinion was expressed that the Peers would prove intractable, 'Oh, silly,' cried Sunderland, turning to Churchill; 'your troop of Guards shall be called up to the House of Lords.' I think, my Lords, this will show that it is wise to devise guards against such attempts being made at a future period, and that it may not be unnecessary even to strengthen the rights and privileges of your Lordships' House. At least, your Lordships will take heed how you suffer the well-recognised and constitutional law of usage to be departed from. But without going back so far as the reign of James, we have a nearer and yet more striking experience to guide us, in the fate of the citizen King (Louis Philippe). For the sake of securing a little momentary popularity, that unfortunate monarch sanctioned the introduction of life Peers into the Chamber of Peers of France. And with what result? He soon found that the defence and barrier which should have defended him in times of difficulty and danger had been destroyed by the course he had pursued, that the equilibrium of the State was disturbed; his throne fell from him, and he found himself alone, deserted by those he had elevated, and surrounded only by a few false friends and insidious advisers. He fled disguised, and died dethroned and an exile.

I have now, my Lords, performed the task I have undertaken, and I have, I trust, fully warned your Lordships of the dangers that lurk beneath the proposed creation of life peerages. I have now only 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.


Though I fear, my Lords, that I shall incur the charge of presumption by attempting to move an Amendment to the Resolution of the noble and learned Lord (Lord Lyndhurst), I am induced to take the course of which I have given notice by the strong sense I entertain of the danger that may arise and the very serious evils that may result from adopting the Motion of the noble and learned Lord, while it also seems to me desirable that the objections to that Motion should be brought under your consideration by some Member of your Lordships' House entirely unconnected with Her Majesty's Government, and who is not prepared to go the length of approving the measure which has been adopted by them, and is now in question. I am relieved from the necessity of following the noble and learned Lord through a great portion of his speech. I will not touch at all upon the question as to whether any clear precedent can be quoted for the admission of a commoner into this House by a grant of a peerage for life. The noble and learned Lord has convinced me that there is more doubt upon this point than I had supposed, but I do not consider it one which is necessary for us to decide. I will also abstain from touching the question whether Her Majesty has been rightly advised to grant this patent, or whether danger would arise from establishing practically the custom of granting life peerages. The noble and learned Lord at the end of his speech forcibly warned your Lordships against the danger of allowing the hereditary principle to be broken in upon. To a certain extent I agree with the noble and learned Lord; but if I went to the full extent—if I agreed with him that the prerogative had been improperly exercised, and that there was extreme danger in allowing the practice of granting peerages for life to be established—this would afford no ground for adopting the present Resolution, unless the noble and learned Lord can satisfy the House that it is not merely improper and inexpedient that this patent should issue, but that it is in excess of the power of the Crown. That is the only question. The two questions of whether it was right to exercise the prerogative and as to the existence of the prerogative are totally distinct. The noble and learned Lord himself well illustrated that difference but the other night, when he told us that if the Crown were advised to create a hundred Peers simultaneously it would not be illegal, but certainly would be unconstitutional. That distinction was a sound one. Any such exercise of the prerogative would afford ample ground for passing a vote of censure on the Government, it would even justify the other House of Parliament in impeaching, and your Lordships in finding guilty of a high crime and misdemeanor, the Ministry which had advised such an abuse of the power of the Crown. Still, the act would not be illegal, and those hundred Peers so improperly created would have a right to take their seats in this House, and your Lordships could not refuse them admission. So, in this case, the argument used in order to show that it is wrong to revive an obsolete prerogative of the Crown, and to prove the great danger of granting peerages for life, would be strong if it were brought forward in support of a Motion to the effect that this House ought to censure the Ministers for the advice they had given to the Crown, or of a proposal that the House should adopt some measure to prevent such an abuse for the future. If this had been the course which the noble and learned Lord proposed to pursue, I should admit the validity of his argument. But that argument goes for nothing in support of the present Resolution, unless he can also show, not merely that it has been wrong thus to revive the exercise of an obsolete prerogative of the Crown, but that the prerogative so claimed does not legally exist, and that the act which has been done is in excess of the legal powers of the Crown. Has even the noble and learned Lord, with all his extreme ability, his great knowledge, and long experience, succeeded in showing this? or has he even ventured unequivocally to declare his opinion against the legality of the creation of a life peerage? Let me remind your Lordships that this point is one which ought not to be lost sight of, and the speech of my noble Friend below me (Lord Glenelg) has shown admirably how very grave a step it would be for this House to take upon itself to contest the Royal prerogative, unless it can clearly prove its illegality. I repeat that the attempt to establish this proposition has entirely failed. Notwithstanding the speech of the noble and learned Lord opposite, there is a consistent stream of legal authority from the time of Lord Coke to the time of Lord Redesdale, all affirming that the power belongs to the Crown. I will not go over ground which has been so fully occupied by my noble and learned Friend below me (the Lord Chancellor), but I cannot help saying that I think it a most extraordinary mode of attempting to destroy the value of these authorities by telling your Lordships that they have all blindly followed Lord Coke. Now, I cannot believe that such men as Blackstone, Selden, Sir Matthew Hale, and Lord Redesdale would blindly follow Lord Coke—the authority of such men is not thus to be got rid of. The noble and learned Lord has himself told you how very high is the authority of Lord Redesdale upon questions of this kind, and that upon questions of Parliamentary law there is no authority higher. Now, can your Lordships believe that, when there was referred to a Committee, presided over by Lord Redesdale, the question relating to the dignity of a Peer, his Lordship, entering, as he did, into this most important investigation with great learning and extraordinary patience, is to be regarded as having merely followed the authority of Lord Coke? I really think this is a position, which cannot for a moment be established; yet, in his most able report upon the Dignity of a Peer, Lord Redesdale assumes, as a matter undoubted and clear, that the opinion of Lord Coke was correct. I cannot help thinking that, after an opinion of this kind, given by a Committee of your Lordships' House, printed by your Lordships' authority, remaining for thirty years unquestioned, if the law was doubtful before, this amounts to something very like a final adjudication in the matter. Then I come to the question of analogy and inference. Now, surely, if we look into this subject, and consider it in that light, there are very strong grounds for believing that the Crown possesses this prerogative. In the first place, by common acknowledgment, the Crown possesses the right of creating peerages limited either to heirs general or to heirs male; and it possesses still further the right of limiting it more closely, and of saying that it shall descend only to the sons of the grantee by a particular marriage. The Crown has repeatedly exercised the right of granting a peerage in remainder; and when it does that, unless my information is altogether incorrect, the Crown makes two grants—a grant to the person who immediately holds that peerage of a peerage for life, and at the same time a grant to some other person as a matter of reversion and to his heirs after him. Now, I want to know, does the fact of a separate and distinct grant to another person make any difference to the law upon this subject? If I may give to a certain person a certain thing, and another thing at the same time to another person, is it not an extraordinary conclusion to say that I must give both? Is not the less included in the greater? And if I may give a life peerage, and, at the same time, give to a totally distinct person the same peerage in reversion, with the power of transmitting it to his heirs, I am surely entitled to grant it without that. I can easily imagine that if a grant in reversion had never been attempted it might have been held to be illegal, but I cannot understand how you can argue that this grant of a reversion can make a difference in the grant of a patent for life. Both authority and analogy, then, are in favour of the possession of this power on the part of the Crown, and I maintain that you have precedent also for the exercise of the power, because the Crown has granted peerages for life in a very considerable number of cases, and even up to a comparatively recent period, is admitted. No doubt these peerages, especially the later ones, have generally been granted to women; and as women are excluded from this House, of course their right to sit here never came in question. But is it not a somewhat arbitrary assumption to say that, because these peerages were granted to women, they are no precedents for peerages for life? I must wholly dissent from that doctrine. Remember, I am not now considering the expediency of using this power, because then the fact that these peerages have been latterly confined to women would be of some importance; but when I am considering the dry law as to whether the Crown possesses this power or not, then the question of whether these persons were enabled by patents of this kind to take their seats here becomes of very much less importance. How does the case stand? Peerages have been granted to women so lately as the reign of George II. Now, these peerages, I believe, were never contested. If one of these ladies had been guilty of an offence, she would have been tried by the House of Lords, and not by a jury; and my noble and learned Friend (the Lord Chancellor) reminds me that two of them were actually summoned to George III.'s coronation. These were, therefore, peerages to all intents and purposes. Now, if these same patents of peerage had been issued in the very same words to a man, have you any proof that the Peer thus created would not have been entitled to a seat in Parliament? That is what you have not yet proved, but that is what you must prove before you are entitled to reject these cases as precedents in settling the law of the question. I cannot believe that merely filling up the blank with the name of a man instead of a woman would make the document illegal; and if not—if you admit that the document would be legal, and that a peerage could be so created—then, I say, we have it on the authority of Lord Redesdale's Committee that it is incidental to the character of a Peer of the United Kingdom that he should be a Member of this House. My noble Friend the Lord President of the Council quoted from Lord Redesdale's Report a passage to this effect, and I had selected (though I will not now trouble your Lordships with it) a similar passage from the earlier Report of 1817. But then you attempt to destroy the value of this testimony by saying that commoners were never admitted to sit in this House upon grants of peerages for life. Even, however, upon that point I cannot help saying, that the noble and learned Lord, in his very able speech, failed to make out his case. I admit that the majority of life peerages at an earlier time cannot be quoted, inasmuch as they were made by the authority of Parliament; but I do not think he made out that the case of Sir John Cornewall did take place with the authority of Parliament. He made use of a most ingenious argument to show that the Cornewall peerage was not a peerage by patent, but that it was equivalent to a writ of summons, and therefore that it created a peerage with remainder to his heirs. The argument was highly ingenious, but at the same time I do not think it can take away the effect of the written words before us. Here we have the actual patent printed from our rolls, and with that patent before my eyes I must regard this as a creation by patent; and being so, with no remainder, it furnishes a precedent for the present creation. [Lord LYNDHURST said, there was no entry of a patent on the rolls, but simply of the appearance in Parliament.] I cannot verify my statement from memory, in the face of the noble and learned Lord's assertion; but, leaving this, I will now return to the argument I was before pursuing. I have endeavoured to show to your Lordships that, even setting aside this case, the power possessed by the Crown rests, in the first place, upon authority, next upon analogy, and then upon the actual exercise of the power of creating peerages for life. I believe that the only authority against this prerogative is an obscure and anonymous note in Hargrave and Butler's Notes on Coke upon Littleton. With regard to the question of authority, the noble and learned Lord opposite has not ventured to deny the legality of this exercise of the prerogative by the Crown; and several Members of your Lordships' House, themselves great authorities, have expressed their opinions upon the subject, and I will remind your Lordships that only one noble and learned Lord (Lord St. Leonards) has ventured to declare in so many words that this creation is an excess of power on the part of the Crown. I have listened, my Lords, to the noble and learned Lord who has just sat down, and have heard, I believe, every word which has fallen from his mouth; but in the whole of his able argument I perceived that he endeavoured very ingenionsly to show that this exercise of the prerogative cannot be supported by precedent; but he did not even attempt to show that there was any positive authority in support of the opinion that it is illegal. The noble and learned Lord has carefully avoided that point, and knowing as I do his great ability, I consider that the fact of his carefully avoiding pledging his opinion upon that part of the question, does, in fact, amount to an admission that he feels that he is unable to contend with the difficulties of the case, and to show that there has been an excess of power on the part of the Crown. I would wish to recall to the attention of your Lordships that, upon the first night when we debated this question, the noble and learned Lord not only carefully abstained from denying the legality of this patent of creation, but in reality he implied the reverse, for in the able speech which he made upon that occasion, he mixed up together the questions of expediency and legality, and endeavoured to create an impression against the patent as being an improper exercise of the prerogative of the Crown, but at the same time he implied that his opinion was in favour of its being strictly legal. My noble and learned Friend the Lord Chief Justice, on that occasion, only went so far as to say that he believed, when the question came to be argued, the legality of this creation would not be established. Another noble and learned Friend of mine (Lord Brougham), who formerly held the Great Seal, went still further, for he frankly acknowledged that such creations, in his opinion, were strictly legal.


I only said that I was inclined to consider them legal.


Very well; my noble and learned Friend was inclined to believe their legality. Now, against all this authority we have one noble and learned Lord opposite, who states that it is his distinct opinion that the Crown has not the power of making these creations. This being the case, let us consider the arguments upon which those rely who deny the validity of this patent. Now, my Lords, I think, when we come to consider the subject carefully, those arguments resolve themselves into two heads—disuse or non-exercise of the power of the Crown, and the assumption which we heard the other evening, but which has not been repeated to-night, that the power of transmitting the dignity to his heirs is essential to the character of a Peer. With regard to the non-exercise of the power of the Crown, I concur with the noble and learned Lord, and I agree, with the majority of your Lordships, in thinking that the Crown should not be advised to exercise powers which have been long in abeyance; but I do not believe that, when such a power has been maintained by the Crown to so late a period as the reign of George II., when all the authorities go to show that those powers may legally be exercised by the Crown, the circumstance of non-exercise alone can be sufficient to deprive the Crown of powers which it at one time enjoyed. To do so, something more, such as an express Act of the Legislature, or some formal declaration that the power of the Crown in this respect had ceased to exist, would, I think, be necessary. With regard to the other argument, I confess that I do not think that any weight can be attached to it. This being the case, I think that I am justified in calling upon your Lordships to reject the Resolution which has been moved by the noble and learned Lord, but to agree to the Amendment which I shall presently propose. I will just remark that in that Amendment I do not ask your Lordships to confirm the validity of patents of this nature, and still less to affirm the expediency of granting them; but, on the contrary, if your Lordships agree to my Amendment, I have given notice of my intention to move further Resolutions expressing opinions as to the expediency of the grant which has been made, not very dissimilar from those entertained by the noble and learned Lord opposite, and, I believe, by the majority of your Lordships. All that I ask your Lordships to do is to come to the determination that it is not right, upon doubtful and uncertain grounds, to refuse to admit the prerogative of the Crown; I call upon your Lordships to abstain from deciding upon such very doubtful grounds as have alone been adduced in favour of that conclusion, that the Crown has exceeded the authority which belongs to it, and from taking, upon that assumption, the strong step of refusing to permit Lord Wensleydale to take his seat in your Lordships' House in obedience to the writ of summons which he has received from Her Majesty. This, my Lords, is all that I venture to ask you to do; and I call upon you, before acceding to the Resolution which has been moved by the noble and learned Lord, to consider how serious are the objections to such a course, and how great are the danger and inconvenience likely to arise from it. Let us beware that in resisting this exercise of the prerogative of the Crown we do not go beyond our functions, and incur the imputation of having stretched our own power to an illegal extent. I can conceive nothing more dangerous for this House than for it to go one hair's breadth beyond its legitimate power. Your Lordships, as the hereditary branch of the Legislature, are especially interested in maintaining the prerogative of the Crown; and I would caution your Lordships to take care that in denying the power of the Crown to make this creation you do not strike a blow at those foundations upon which your own privileges rest. There is one other point to which I would invite your Lordships' attention. Your Lordships should remember that the prerogatives and privileges of the Crown are held by it for the benefit of the people, who are interested, therefore, in maintaining those privileges and prerogatives, especially as they regard this House of Parliament. The representatives of the people may, therefore, deem it their duty to question the course pursued by your Lordships, if it should be carried further. The House of Commons has always shown a great jealousy of encroachment on the part of the House of Lords, and, if that House should arrive at the conclusion that you are overstepping your legitimate authority in refusing to allow Lord Wensleydale to take his seat, it is impossible to foresee what may take place; but I can see that there are many ways in which a most dangerous collision might be brought on between this and the other House of Parliament. Many who may admit the inexpediency of the exercise of this prerogative, may nevertheless assert its existence, and maintain that only Parliamentary enactment can destroy it. If we admit it to be necessary to restrict the prerogative of the Crown on the ground that it has been abused, still we have no right to proceed alone to take any steps for that purpose. No new restrictions can be put on the powers of the Crown except by legislation, and we are not entitled either to legislate by our own authority, or to establish by it new regulations which can only be legally imposed by an act of the whole Legislature. Look, then, what a dangerous precedent will be established if we take upon ourselves to refuse to allow Lord Wensleydale to take his seat on the grounds now before us. If your Lordships could put it as a clear matter of law, as in the case of a writ of summons to some person clearly disqualified by law, then I admit that the noble and learned Lord would be justified in asking your assent to this Resolution; but for your Lordships on doubtful grounds to assume this large authority to yourselves is, in my opinion, very dangerous. A noble Earl (the Earl of Winchilsea) who spoke in a preliminary debate said, if I correctly understood what fell from him, he believed that the Crown possessed the power of creating a life peerage, but that he objected to its exercise, and that he should vote for the noble and learned Lord's Resolution; not because he thought that what has been done is illegal, but because he considers the prerogative of the Crown to have been improperly exercised. That, in my opinion, would be a dangerous precedent. Another majority in this House may say, at some future time, that hereditary Peers have been created in too great numbers, and that the peerage has been given to improper persons, and, on these grounds, may take upon themselves to refuse to admit persons who come to this House with those patents in their hands. That is precisely the abuse, great though it may seem, that the noble Earl tells us he is going to commit in this matter—and to commit, too, with his eyes open. I can easily conceive a most improper grant of an hereditary peerage, which would justify the impeachment of those who advised it; but does not every man see that if you refuse to admit a Peer for life on the ground of its being an improper exercise of the prerogative, you may refuse to admit those whom you might consider to have been created Peers improperly, although they might have hereditary grants, and thus virtually establish in this House an absolute, irresponsible, and uncontrollable authority in the State. When the House of Commons commits an abuse, there is a remedy in an appeal to the people; but if a majority of the House of Lords, on such grounds as those I have mentioned, refuses to admit a person summoned by the Sovereign to his place among you, from that moment a majority of this House will become utterly irresponsible, and the whole balance of the constitution will be destroyed. Such are the serious consequences which will result from adopting the Resolution of the noble and learned Lord, unless it can be shown, beyond doubt or controversy, that the issue of a patent of life peerage is beyond the strict legal power of the Crown. My Lords, upon these grounds I move as an Amendment— To leave out all the Words after the Word 'Opinion,' for the purpose of inserting the following Words; namely—'That the highest Legal Authorities having concurred in declaring the Crown to possess the Power of creating Peerages for Life, and this Power having, in some Cases, been exercised in former Times, the House of Lords would not be justified in assuming the Illegality of the Patent creating the Right Honourable Sir James Parke Baron Wensleydale for Life, and in refusing upon that Assumption to permit him to take his Seat as a Peer. [The noble Earl had also given the following notice. [If the above Amendment should be agreed to by the Committee, then to move the additional Resolutions:— ["1st. That although several Grants of Peerages for Life are recorded to have been made in favour of Females up to a comparatively recent Period, no Precedent has been found within the last Four Hundred Years for the Admission of a Commoner to the House of Lords by the Grant of a Peerage for Life: ["2nd. That the Grant of a Peerage for Life to Lord Wensleydale being thus unsupported by any recent Precedent, it is expedient that the House should declare its Opinion, that, as a genera I rule, Her Majesty ought not to be advised to make use, without the Consent of Parliament, of any of the Prerogatives which may still in strict Law belong to the Crown but which cannot be shown to have been exercised except in remote Periods of our History, when the Constitution was in many respects unsettled; but that, having regard to all the Circumstances of the Case, the House, in declaring this Opinion, may properly abstain from expressing Disapprobation of the Conduct of Her Majesty's confidential Servants in advising the Grant of a Peerage to Lord Wensleydale for Life: ["3rd. That the Grant of Peerages for Life might in some Cases be of Advantage both to the House of Lords and to the Public, but that the Practice of granting such Peerages would be peculiarly liable to Abuse unless guarded by some precautionary Regulations: ["4th. It will require further and mature Consideration to determine what Step it will be proper for the House to adopt in order to prevent the Patent granted to Lord Wensleydale from being drawn into a Precedent in favour of creating Peerages for Life, and in order to establish adequate Securities against Abuse if such Creations are hereafter to take place."]


said, that if this were a merely legal question, implying great knowledge and study of the law, he certainly should not have presumed to speak. But now a new scene was opened; the Amendment moved by his noble Friend opposite had brought the constitutional bearings of the question fairly before them, and their Lordships would therefore, he hoped, forgive him if he desired to address to them a few remarks. He must say, in the first place, that he had viewed with very great regret the precipitation with which Her Majesty's Ministers had acted upon this question. He gave them the fullest credit for good intentions, and he entirely acquitted them of having any sinister designs against that House; but at this critical period of our foreign affairs, when all parties in that and the other House of Parliament had acted with so much praiseworthy moderation and forbearance towards the Government, what necessity was there for their flinging this apple of discord among their Lordships? Was it wise, without having ascertained the opinion of the law officers of the Crown, to revive a prerogative of such doubtful legality—and certainly, at least, so long disused? With respect to the question of legality, he must say that he was much impressed with the argument against this prerogative on the ground of desuetude. We must all feel that, after such manifold changes in the constitution of the country, the exercise of the prerogative, after so many years' disuse, in the creation of a life peerage, was, in its practical effect and bearing, though it might not be in its legal effect, the creation of a new prerogative. Compare this to another branch of the prerogative, far more recently exerted, the right of withholding the Royal Assent to a Bill which had passed in Parliament. This, at least, was an undoubted prerogative of the Crown. Mr. Macaulay gave several instances of its exercise in the reign of William III.; but it had never once been used during the milder rule of the Princes of the House of Hanover. But, clear and certain as it was that this prerogative belonged to the Crown, would any measure arouse more general astonishment and indignation than that the Minister of the Crown should now, under almost any circumstances, advise the Sovereign to refuse the Royal Assent to any Bill that had passed both Houses? If that were the case with regard to an undoubted prerogative, what could be said to the revival of such a questionable prerogative as the one now under discussion after the lapse of 400 years? The noble Earl, in one of his additional Resolutions, to be moved if his Amendment should be agreed to by the Committee, has frankly admitted—"That, although several grants of peerages for life are recorded to have been made in favour of females up to a comparatively recent period, no precedent has been found within the last 400 years for the admission of a commoner to the House of Lords by the grant of a peerage for life." Now he (Earl Stanhope) could not but think that after so long a disuse of this prerogative it was no longer part of the legal prerogative of the Crown. He did think that, if their Lordships looked to the changes of policy which had taken place in all our institutions, civil and religious, it was impossible on constitutional grounds to allow that a precedent derived from such remote and turbulent times as those in which this prerogative had been exercised was just and admissible. Undoubtedly it might be a fair question to discuss whether another course might not be taken—whether their Lordships might not allow this patent to pass, and then take securities against the abuse of the prerogative for the future. He could so far go along with some noble Lords opposite as to admit frankly that, if life peerages were guarded against abuse and limited in number, very considerable advantages might accrue to that House by their introduction. They would thus avoid the evil of the present practice; a great Judge or legal functionary with a large life income being called up to the House, with no hereditary patent, and being succeeded by his son as an indigent Peer. Now, independence should always remain an essential element of the constitution of the House; it was difficult, in a station of high rank, to retain independence without competency of fortune; and he feared that if indigent peerages should be created in large numbers, their successors would no longer maintain that independence which had hitherto, taken as a whole, characterised the Members of their Lordships' House. These indigent Peers would be found too frequently crowding the antechambers of the Sovereign or the Ministers in quest of places in the Court or State, not as steps in any noble career of ambition, but only to eke out the means of maintenance. Moreover, their Lordships must remember that high judicial functionaries formerly possessed the power of making provision for their families which they no longer enjoyed. A strong instance of that kind was afforded in a Peer held in high respect by all their Lordships—he meant the Earl of Roden—who was descended from a Chancellor of Ireland, who died exactly a century ago, namely, 1756, and yet, even after that lapse of time, Lord Roden was still in possession of a salary or pension of large amount, to cease only with his own life, in connection with the official services of his ancestor. Now, whether for good or evil, it was plain that no such opportunities of providing for a Judge's family would be in future found. Admitting it, then, to be his opinion, that under proper limitations considerable advantage might be derived from the creation of life peerages, he might be asked why he opposed the patent of Lord Wensleydale? His reply would be that it seemed to him that without some limitation the dangers of abuse and the facility given to the Minister to increase his power by such, creations would be so enormous as much more than to counterbalance and outweigh all the advantages that could be derived from the practice. They must consider that in any attempt to overrule the decisions of their Lordships' House the greatest facility for doing so would be afforded by the expedient of life peerages. The creation of life peerages would therefore not only put that power into the hands of the Minister, but it would probably be not unfrequently exercised, because the reply to any objections raised would be that the injury, if injury there existed at all, would not be permanent, but only temporary. Not only so; but, when one Minister had been in office, and had created some ten or twelve of those life peerages, his successor might very naturally say he was not to be overruled by the life Peers of his predecessor, and would create a batch of ten or twelve more Peers to restore his majority, while a third batch might be created by another Minister to overrule the decisions of the other two. So that there would be no end to the progressive increase; and great inconveniences and even danger might therefore evidently attend the practice. It was difficult to refer to this part of the subject without remembering the precedent of 1832, on the occasion of the Reform Bill, when the King consented and the Prime Minister resolved to create a large number of Peers. He thought this precedent suggested some useful lessons which ought to be borne in mind on the present occasion. It was well known that Earl Grey, when he resolved to adopt that measure in 1832, did so with the utmost repugnance and regret, and only under the pressure of what he believed to be an overruling sense of duty. Now, could it be doubted that the expedient of life peerages presented itself to his mind as the easiest mode of settling the question? Then, if Earl Grey did not upon that occasion adopt the creation of life Peers, but threatened to resort to a different measure, to what other cause could they ascribe this, but to his conviction that it would be not only unconstitutional but even illegal? From Earl Grey's own views on that occasion we might also deduce the thought that only the most extreme exigency could justify the creation of Peers in large numbers to overrule the decisions of the House; and, if so, their Lordships ought, not to grant to Ministers any new or greater facilities for a power so liable to be abused. The question to consider was, whether there was anything either in the propositions of the Ministry, or the Amendment of the noble Earl (Earl Grey), which gave any security against abuse if they were allowed to advise the exercise of a prerogative so long disused. He confessed he could see none, and he advised the House to be cautious before they allowed such a power to be in the possession of Ministers, with the simple pledge that it would be used with moderation. The patent of Lord Wensleydale was a simple natural exercise of the prerogative, unguarded by any limitations for the future. The weapon so long ready and disused was here again sharpened up for use and drawn from the scabbard—it was unsheathed—it was brandished in their Lordships' faces, and there was no necessity beyond the moderation of the holder when or how that scabbard should be resumed. Then, did the Amendment of the noble Earl afford them any greater security against abuse? In that Amendment he found no security whatever, his noble Friend having contented himself with the statement that the further exercise of the prerogative was not to be recommended. It might perhaps be beneficial to sec peerages for life introduced if they were strictly guarded by provisions limiting the total number and likewise the number that could be made in any one year, and also the qualifications on which they should be founded. It might also be possible to strengthen the judicial tribunal of their Lordships by adopting a suggestion, which he thought worthy of consideration, for attaching peerages to great official positions, such as that of the Judge of the Admiralty Court, the Master of the Rolls, and other great legal functionaries—so that there was a possibility of obtaining the required addition, of legal strength without resorting to the creation of Peers for life. If, however, a system of life peerages, without stint or limitation, were once fully established, they might consider it as the beginning of a fundamental change in the constitution of their Lordships' House. Now, before they consented to any such fundamental change in the constitution of that House, he entreated them to look at what had occurred in all other monarchies where attempts had been made to establish constitutional Government. It would be found that in all these cases the Second Chamber had always been the main difficulty. There had been no difficulty with respect to the establishment of the Royal authority, investing it with the great prerogative of mercy and justice, peace and war. The elective Chamber, who would be framed with case, whether on a most restricted franchise, as was the case in France ten years ago, or whether, even on universal suffrage, as was also the case in France at a more recent period. All this was no hard task. But to make a Second Chamber, standing between the Crown and the elected body, was a problem which had baffled and bewildered the ablest statesmen on the Continent. If they gave the nomination to the Crown, they doubled the Royal authority. If they lodged it with an elective body, the popular principle was too predominant, and there was a further force given to those hidden democratic impulses which it was desired to restrain and to control. In almost every case the Second Chamber was a failure, and the wisest statesmen on the Continent had come to the conclusion that a House of Peers could not be created at once any more than an old oak can be created; that, in fact, it could not be created, and could only grow. If he were to give testimony of peculiar weight on this subject, he would quote an opinion on the English House of Lords, pronounced by a man as eminent for his genius, whether in peace or war—the great Emperor Napoleon. The following was an extract from a work published by a Member of their Lordships' House (Earl Fortescue), then known as Lord Ebrington. The noble Earl relates some remarkable conversations which, in December, 1814, he had with Napoleon in the Island of Elba:— Napoleon said that he considered the House of Peers as the great bulwark of the English constitution, which he thought would be overturned if there were in the country materials for making another such assembly equal in all respects to the present, But in France, he added, 'I could make you forty senates quite as good as the one which I did make.' And Napoleon then went on to point out the great additional strength obtained by combining in the House of Commons the heads of the commercial as well as of the landed interest, forming together what might be termed, in the widest as well as truest sense, the aristocracy of the country.' The experiment of making another House of Lords failed even when attempted by the great genius of Cromwell, and most certainly it would not succeed in meaner hands. He did not know how long their Lordships' House might be able to resist the perils which, like all human institutions, it must occasionally encounter; but of this he was certain, that if it were once overthrown it could never be reconstructed in this country with the least share of real influence and power, or with the least prospect of permanent stability. And when he heard some persons out of doors talk of ours as only a territorial constitution, and inveigh against that House as representing nothing beyond the landed interest, he would venture to remind its censors that under our constitution, territorial though it might be, the authority of that House had been found consistent with the widest development of trade and commerce the world had ever yet seen, and that while it had continued to flourish the merchant fleets of England had traversed every sea, her colonies had been raised on almost every coast, and her gigantic manufactures had ministered to the wants of nearly every quarter of the globe. Seeing, then, the importance of maintaining the constitution of that House, and seeing that the power of creating life peerages was not checked or controlled by any securities, he thought he was fully justified in supporting the Resolution of his noble and learned Friend. He did not, however, think he should have been justified in supporting it if his noble and learned Friend had failed to prove that the patent was not valid. But it appeared to him (Earl Stanhope) his noble and learned Friend had made out his case; and, having established that the patent was not legally valid, it was open to the House to consider whether they should pass the patent, and take securities against the abuse of the prerogative. For the reasons he had stated he did not think that course safe, and, therefore, without doubt or hesitation, he should give his vote for the Resolution.

He would stop there if it were not that he thought himself bound in justice not to conclude without one observation upon another subject. He desired to speak with perfect courtesy; but, at the same time, he thought himself bound to speak with perfect frankness. He could not say he was persuaded that the appellate jurisdiction of the House of Lords was altogether in a satisfactory condition. He said that with the most perfect respect to the noble and learned Lords who administered that jurisdiction. He admired the ability and integrity of those noble and learned Lords; but he regarded the system itself to be in some degree defective. There was one part in particular of the appellate jurisdiction so utterly repugnant to anything like sound reason that he did not think it could long exist after it had been fairly exposed—he meant the part required to be taken in it by the lay Members of the House. When they considered that lay Peers were summoned day by day—one Peer to hear the evidence, another to hear the argument, and a third to assist in the judgment, and that those Peers had no share whatever in the decision to be given, and could not possibly form any opinion upon purely legal questions, he thought they would see how necessary it was that the system should be changed. It might be that no wrong was inflicted; but that part of the system was in reality a mockery and farce, and nothing more—they could not desire to retain it. Other faults—other defects—might, perhaps, in other parts also, be pointed out, but while he thought the system ought to be changed, he thought there were means—and some had been indicated that very night—of putting the appellate jurisdiction in a more satisfactory state without resorting to the perilous remedy proposed by Her Majesty's Government. He repeated, he should vote for the Resolution of his noble and learned Friend; and he thought the House owed his noble and learned Friend gratitude for having on two occasions called attention to the subject, and for the manner in which he had conducted the discussions on the question. There were two things in the House at present which wore without parallel in ancient or modern times. His noble and learned Friend was the only instance of a statesman past fourscore able to take a leading part, as he had done, with eloquence and effect, in the discussion of a great public question, affording them the promise of many more years of active usefulness. Nor was there an instance, beyond that on the Treasury bench, of a statesman who had sat in the Councils of his Sovereign at the distance of half a century. He alluded to the noble Marquess (the Marquess of Lansdowne) who was a colleague of Mr. Fox in the Cabinet of 1806, and who now occupied a seat in the Cabinet of 1856. He was sure he gave utterance I down not merely to his own feeling, but to the feeling of every Member of their Lordships' House, when he expressed his earnest hope that both those eminent and venerable Peers might continue for many years to come, in any difficult emergency, to assist the deliberations of the House with their public spirit, their wisdom, and their eloquence.


said, that, as many of their Lordships might be disposed to concur in the mild and courteous censure cast by the noble Earl who spoke last upon the Government for having at such a time and in such a conjuncture of public affairs thrown an apple of discord into the House, he felt that a word of explanation was due from the Government upon that point. It was because the Government concurred, to a certain extent, but only to a certain extent, in one of the concluding observations of the noble Earl with respect to the present unsatisfactory condition of the appellate jurisdiction of their Lordships' House that they advised Her Majesty to create a life peerage in favour of Lord Wensleydale. Her Majesty's Ministers, however, did not concur in the language held out of doors as to the inadequate manner in which the appellate jurisdiction of the House had been of late administered; but they were of opinion that that jurisdiction should immediately be strengthened to a certain degree, and a precedent revived, not set, by which, from time to time, future Governments might be enabled to maintain it undisturbed. On those grounds, without entertaining any doubt as to the legality or constitutional character of the step, they determined on giving a life peerage to a Member of the bench who, it had been admitted on both sides, would add greatly to the judicial strength of the House. He wished it to be distinctly understood on the part of the Government that they had no conception whatever they were raising a question of constitutional law. [Cheers.] Noble Lords opposite seemed to think it a great triumph to have gained that admission from the Government; but, he would ask, how could the Government entertain any doubt on the subject when they found every great judicial writer from Coke downwards declaring, as a matter beyond dispute, the power of the Crown to create life peerages? But that was not all; for they found the most eminent legal Members of that House, now their opponents, laying the down the same doctrine. It had been made a charge against the Government that they did not consult the law officers of the Crown. Did that accusation come well from men who, a few hours ago, refused to consult the Judges? He would admit to the noble Lord opposite that, if the Government had entertained the least doubt upon the strict legality of their proceedings, it would have been natural on their part to consult the law officers of the Crown; but they had no doubt whatever as to the prerogative, and it would have been unusual to consult the law officers upon the expediency of the measure. Upon the policy of a measure he never heard that any Government ever consulted the law officers of the Crown, and in this instance it never occurred to them that any legal point was involved. He cordially concurred in many of the observations in the speech of the noble Earl who had just sat down; but he was sure their Lordships must see that the whole drift of it was in reference to the expediency of this course, and would never justify voting for such a Report as was recommended to the Committee by the noble and learned Lord (Lord Lyndhurst). Let them see the position of the House. They were not disputing about the policy, or debating upon the possible dangers which might arise out of this measure. It was admitted that nothing could justify the Report unless it could be proved that the course adopted by the Government was illegal—not illegal in the sense of being opposed to the statute law, but illegal in the sense of being at variance with the constitutional law of the country. To-night they had refused to consult the Judges of the land—unwisely as he thought, because, if they could not have put the direct question to the Judges, they might have obtained their opinion on questions surrounding it. They had been long accustomed, and he hoped the custom would long continue, to defer to the legal Members of the House on all questions of pure law; and it was true that on the present question the legal Members of the House were opposed to the course pursued by Her Majesty's Government. But this was not merely a legal question—it was a great constitutional question; and there was one privilege they possessed, not as Peers of Parliament, but as Englishmen, which they would never delegate to any man or set of men—namely, the right of judging whether a measure were constitutional or not. Every Englishman was able, or ought to be able, to judge upon that question. The constitution of England was not written in law like the constitution of the United States; it was the air they breathed—the very atmosphere in which they lived from childhood. Every one, therefore, on a constitutional question might exercise a free discretion and a free opinion, untrammeled by the opinions of the legal Members of the House, though treating them with deference and respect. He would further say that circumstances had taken place in the course of the debate which should make their Lordships regard the advice of the legal Members with peculiar distrust. The very question which, on the Motion of the noble and learned Lord, the House had referred to the Committee of Privileges was a question avowedly expressing a doubt of the legality of the patent. They were to examine and consider the copy of the letters patent "purporting" to create the right hon. Sir James Parke, Baron Wensleydale. What was meant by inserting the word "purporting?" It was meant to indicate that Lord Wensleydale had no right to sit except by his right to the barony, and to express a doubt as to the legality of the patent creating him Lord Wensleydale. That argument was supported by the language of the noble and learned Lords, who, during the debate, invariably spoke of Lord Wensleydale as their "right hon. Friend;" and it was not until the admission was wrung from them by the noble Marquess (the Marquess of Lansdowne) that they admitted, what nobody at present denied, that he was Baron Wensleydale, and that it was not a patent purporting to create, but actually creating him a Baron. He thought that was a circumstance which must somewhat contribute to diminish the authority of these noble and learned Lords upon the point then at issue. There was another point which he would mention, and he trusted he should not be misunderstood; he trusted, above all things, he should not be supposed to mean the slightest degree of disrespect to the profession of the law, with one exception the noblest profession to which men could devote their powers; but a question of policy had throughout been interwoven with a question of law. It had been mentioned in the previous debate that one consideration of policy was the position in which this precedent would place the legal profession for the future. He should sympathise fully with the objection to this measure if he believed, as the Chief Justice believed, that it was intended that no more lawyers would be raised to that House with hereditary peerages; and a feeling had thus been naturally created among them unfavourable to the present exercise of the prerogative of the Crown. But he believed that that impression was utterly unfounded, and for his own part he should regard it as a great public calamity that no more lawyers were to take their places in that House with hereditary peerages. It could not, however, be concealed that there was a very strong professional feeling bearing on the expediency of the measure; but however justifiable that feeling might be, it ought not to influence their judgment. They ought to come to the consideration of the matter free from all considerations of policy or professional pride, and simply as regarded law and precedent. His noble Friend who spoke last said that the noble and learned Lord (Lord Lyndhurst) appeared to him to have made out a strong case against the validity of this patent. He ventured to say that, not only had the noble and learned Lord not made out the invalidity of the patent, but he did not profess to have made it out. The validity of the patent, as far as regarded conferring the dignity of Baron, was admitted; and they had this further admission, that a writ by itself was valid to give a seat in that House descendible to heirs. But it was said the writ in this particular case did not give a seat because the patent conferred the barony for life; so that, in fact, the invalidity of the writ rested upon the validity of the patent. If Lord Wensleydale's grandson claimed a seat on the ground of the writ, the patent would be quoted to prove it prevented inheritance. The Government was said to have no precedents except those of hundreds of years ago; but the noble and learned Lords had no precedent at all for the course they asked the House to adopt. He asserted, on the authority of others, that there was no instance on record of their Lordships having refused to allow a man to come in by virtue of a writ of summons from the Crown except upon the ground of personal and legal incapacity. The precedents did not form the whole case or the strength of the case for the Government. They proceeded on the authority of analogous instances of peerages being limited in every possible way, and they contended that the limitation for life was in perfect consistency with all documents and authorities on the subject. It had been contended that the prerogative of the Crown with reference to the creation of life peerages, not having been exercised for several hundred years, had fallen into desuetude and had lost its validity—that the Crown had, in this respect, lost its prerogative. He opposed in answer to that argument the well-known maxim that the power of the Crown is not lost by prescription—nullum tempus occurrit regi. Without admitting that the power had not been exercised within a comparatively recent period, they had a right to assume that, even if the power had not been exercised, it had not ceased to exist. It was one of the great sources of pride to this nation that, even in times of revolution and excitement, precedent was looked to as a guide. It had also been argued that the constitution of this country had been so greatly altered by the Revolution of 1688, that any precedent drawn from times anterior to that date could not be held conclusive with reference to the exercise of the prerogative of the Crown—that all right not sanctioned at the Revolution had practically ceased to exist. He was astonished at the doctrine. He maintained the exact contrary, and would quote the authority of the greatest living historian, Mr. Hallam, who wrote respecting the Revolution of 1688— Except in the article dispensing prerogative we cannot say, on comparing the Bill of Rights with what was proved to be law by statute, or generally assumed to be law on the authority of the best writers, that the Revolution did not take away any legal power of the Crown, or enlarge the limits of popular or Parliamentary privilege. Many quotations had been made from the last two volumes of Macaulay, but he would quote from one of the finest passages in a volume published some years ago, regarding the effects of the Revolution:— The change seemed small—not a flower of the Crown was touched—not a single new right was given to the people. The whole of the English law, in the opinion of the highest authorities—Holt, Maynard, and Somers—remained exactly the same after the Revolution as before it. That utterly contradicted the doctrine that what was not expressly sanctioned at the Revolution had ceased to be lawful. He maintained the exact converse, and contended that what had not been expressly condemned at the Revolution was still in full force. He regarded as of the highest value the principle that we should be permitted to go back to past times in our history, and to draw thence precedents intrinsically good, although they might have been forgotten. He believed that in the most ancient precedents might be found from time to time materials for renovation, and he could not help thinking that the course advocated by those who supported the Resolution of the noble and learned Lord was one which struck a fatal blow at the principles of our constitution.


* I can truly say that I exceedingly lament the necessity of addressing your Lordships at some length upon the present occasion; and if it affords you any satisfaction under the fatigue of entering into a legal argument at this very late hour of the night, that I suffer under it with you, that the misfortune is common to both parties, this comfort you assuredly may have. But great as may be my reluctance, the task imposed on me—it may be said on us—is unavoidable. Independent of the reference so often made to the events of 1832, and my share in them, it becomes necessary to explain the grounds upon which my opinion has undergone some change since I was first called upon to consider the question of constitutional law, the only question now before us; and I owe it not more to myself than to your Lordships, to the Government, to the great subject itself, to state these reasons without reserve, amply sufficient as I deem them to justify me in asking from you an entire concurrence in my noble Friend's Motion (Lord Lyndhurst) now before you. With much of the noble Earl's statement (Earl Grey) who moved the Amendment, I entirely agree; with his wonted acuteness, and with the fairness and distinctness, which as much as his great ingenuity, ever distinguishes my noble Friend's speeches, making it easy to perceive how far we can concur and where our difference begins, he has most correctly asserted that this House can never assume to decide upon the exercise of the Royal prerogative in granting peerages while these grants are within the power of the Crown, according to the constitution that is sanctioned by the law of the land. For us to sit in judgment upon the manner in which the prerogative has been exercised would be the greatest violation of the constitution, would be a manifest usurpation upon the Crown, an unlawful interference with the Royal prerogative, an interference as much beyond our rights and privileges, as would be the Sovereign's assuming to sit in judgment upon our exercise of any function, or use of any privilege which is ours by law, the right for example to decide in this case. The only question then which can now arise relates to the existence of the prerogative claimed. If the Crown has the right by the constitution, that is by the constitutional law of England, to create life Peers, we have no title whatever to deny the validity of the peerages conferred in the exercise of that right, any more than we should have to deny the validity of the most extravagant, nay preposterous use of the unquestioned privilege of bestowing hereditary peerages. We might complain of such an abuse—we might visit with censure the advisers of it; but the validity of the grants, how lavish, how culpable soever, we should not have the shadow of a title to contest. I therefore entirely agree with my noble Friend that the question is narrowed to that of constitutional law. It is whether or not the prerogative extends to the granting life peerages as well as hereditary—with the right of sitting in Parliament? Are such peerages legal or not by the constitution of this country? Are they allowed by the lex et consuetudo Parliamenti? Upon this question, when first it was proprounded to me, I admit that my opinion inclined, and even strongly inclined, towards the view taken by some, perhaps by most lawyers in favour of the prerogative. At a great distance from all the authorities, whether of records, or text writers, and especially excluded by that distance from all communication with my learned brethren whom this unfortunate circumstance made it as impossible for me to consult, as it was easy for my noble Friends opposite, among others, the noble Lord on the woolsack; deprived by necessity of the benefit of their opinions, as my noble Friend (Lord Chancellor) was deprived by his own choice, voluntarily abstaining as he did, even from the ordinary course of hearing the law officers of the Crown—I had inclined towards the legality of the act done, though I felt, and even expressed to certain of the Ministers, the utmost possible reprobation of it upon grounds of expediency, upon constitutional grounds. But when I came to examine the question closely, with full access to all the records, and decisions, and dicta of judges, and opinions of text writers; when I scrutinised the reasons given for these opinions; when I examined all that had ever been done in exercise or supposed exercise of the alleged prerogative; when I examined the historical as well as legal questions, and surveyed the circumstances of the country, and the frame of the constitution at the periods of the supposed use of the power in question—the doubts I at first felt were multiplied and strengthened until I found that the prerogative had been assumed to exist without any proof whatever, one writer following another blindly and without the least inquiry; that the pretended right rested upon no foundation at all; that it never was really exercised; that if it could be said even to have been enjoyed, it had long since ceased to exist; that the only instances of its exercise were brought forward on gross misstatements of the fact, and that even if truly represented, they belonged to an age when the constitution and its laws were wholly different in every respect from those under which we now have the happiness to live.

It is fit that we keep in view while arguing such questions, the difference between legal and constitutional. They are entirely mistaken who, with a great authority upon subjects of law amendment, of Mr. Bentham, maintain that unconstitutional has no definite sense—that it means whatever anybody for any reason has any dislike of. Now what is illegal cannot be constitutional; but things may be quite legal and yet unconstitutional—that is, inconsistent with the principles, and as it were the spirit of the constitution, tending to an infraction of its laws; or raising an obstruction in the way of their execution; or leading to the making of new laws inconsistent with its nature and fabric. Thus a lavish and needless creation of hereditary Peers for an improper purpose would, though quite lawful, be utterly unconstitutional. A creation of life Peers with seats in this House, would, as we maintain and are ready to prove, be contrary to law, however limited in number, and however unobjectionable as to the persons thus ennobled. There is but one way of determining whether any prerogative belongs to the Crown, or any privilege to either Houses of Parliament. We must recur to the exercise of the alleged right in past times, and more especially in good times, when the constitution was settled—the law fixed and known. Nothing can be conceived more useless than to cite instances of what the Sovereigns did under the Heptarchy, in the Saxon times, or in the Anglo-Norman reign—aye, or somewhat later, in the times of the Plantagenets, when the bounds were so ill traced between the different powers in the constitution. We cannot, indeed, safely rely on instances in the reigns of the Tudors. But it turns out upon full inquiry that even the Plantagenets and the Tudors never exercised the right in question. There is not one solitary instance of a commoner created a Peer for life, and owing his seat in Parliament to that life grant, without the assent of the other two estates as well as the Crown—that is without an Act of Parliament. Even admitting the instances given, the last is four centuries ago, in the reign of Henry VI. But when examined, it proves to be no instance at all.

To that alleged case of life peerage I will come at once. It was relied on by my noble Friend opposite (Lord Grey), and it forms the chief, indeed the only ground of the argument urged in favour of the prerogative from its exercise. But we find upon examination that it unites in itself every objection which can be urged to such precedents of the prerogative. First of all, it is assumed that the patent to Sir John Cornewall was for life, but there are no words of limitation whatever in the grant; so that, instead of giving a peerage for life, it is altogether void for want of any apt words. Such, at least, is Lord Coke's statement of the law in the very passage on which so much reliance has been placed. Co. Litt. 16 b. Indeed, as this was the second creation by patent, there is every reason to suppose that the grant was, as in the first, Beauchamp of Holt, which was in the eleventh of Richard II. really given as that was to the heirs male of the body. Again, suppose it to have been intended as a life creation—Sir John never was summoned to Parliament by his title, but only as John Cornewall, Chevalier; and as he died soon after without issue, the nature of the grant never could be brought in question. But suppose this objection removed, and that there had been an express grant of peerage for life, and a sitting in Parliament under that grant—my noble Friend will not require more lavish concessions—what does the case prove? Absolutely nothing; for it was a dignity conferred—not by the Grown, but by Parliament. This is beyond all doubt clear. The grant purports to be in the presence of, and by the assent of, the great men in Parliament assembled. I hear it said, that the Commons are not named; but no more are they in some of the statutes, best known as such. It has been held by all the authorities, that merely setting forth a grant to have been made in Parliament is sufficient to prove it a statute. Nay, the omission of all mention of the Commons does not prevent it being a statute, as we know in sufficiently notable instances. The Statute of Westminter, the third, for instance, commonly called the Statute of Quia Emptores, and on which the whole system of copyhold tenure rests, by the prevention of subinfeudation—that Act, 18 Edw. 1 (Statute of Quia Emptores), purports to have been made at the instance of the Magnates—the greater Barons. Yet whoever doubts it being a statute? This gift, if of a life peerage, therefore, was by Act of Parliament, not of the Sovereign, and no one dreams of denying that Parliament could make such a creation.

Last of all, suppose this instance, admitted to be the single one, of a commoner ennobled for life with power to sit in Parliament—suppose, for argument sake, this solitary instance was by the prerogative, and not by Parliament—I ask what possible weight such an act of Royal power can have when done in such au age? The constitution had not early in the fifteenth century, nor for long after, been moulded into its regular form. In those days there was no exact distribution of the powers among its different branches. But especially the Sovereign was constantly exceeding the supposed limits of his prerogative. For examples of such excesses, as we should now call them, in that day they excited little discontent, perhaps caused no surprise; we need not go back to the century immediately succeeding the Norman conquest. A century and a half later we find King John, just before the great charter was extorted by the Barons, not the Commons, the hereditary Peers not occupants of seats for life, summoning a kind of Parliament, composed of four knights from each shire, to meet and confer with him at Oxford, probably in order to check the Barons by a little Parliament of his own. His son made equal stretches of authority during his long and troubled reign. But after the great charter had been once and again confirmed, and when the Government might be supposed to have settled into somewhat of a more regular form, we find no less a Sovereign and law giver than Edward I., our English Justinian, as he has been so generally termed, sending a Commissioner by his own mere authority, one John de Kirby, round to all the cities and towns of the realm to explain to the people the Royal wishes. What he was sent for appears next year, when more money was wanted; for a Parliament was then holden at Shrewsbury, and grants obtained, and all the moneys which Kirby had collected were deducted from the levies now legally imposed. This levying of the money by the King's mere authority was in 1283, only two years before the famous statute of Westminster 2nd (Stat. de Donis). No doubt the Statute de Tallagio non Concedendo, made a few years afterwards, prohibited all such levies; but they had been forbidden long before, nay, long before Edward's time, and the Statute de Tallagio was only declaratory of the old and common law. Nor do I expect to hear it contended that all prerogatives exist which have ever been exercised, and never put down by statute. I have mentioned the stretch of Royal power in levying taxes. But there were other usurpations in those days, since the date of Cornewall's peerage as well as before, and which are admitted to have been usurpations, though they never have been declared such by Parliamentary authority. Observe how little the Crown regarded the rights, the uncontested rights, of Parliament itself. We have all heard of the Lack-learning Parliament, the Parliamentum indoctum, as it was more learnedly called, just as we may have heard of a Parliamentum supradoctum, or perdoctum, in later times, from the great copia peritorum, which it has exhibited. That of Henry IV., in 1404, was summoned by writ, which the King issued without any authority whatever, commanding that no man of the law should be chosen Knight of the Shire. This illegal command was obeyed, and the consequence was that no lawyer sat, the boroughs having apparently taken the hint from the counties; and Lord Coke, as we all know, observes on this Parliament that "never a good law was made thereat." But though no one can show any statute depriving the Crown of the right thus to control elections, yet no one will now maintain that such a prerogative is vested in it, or ever was by law. A prerogative just as illegal, but much more frequently exercised, was that of enfranchising and disfranchising boroughs, to which my noble Friend (Lord Campbell) in his learned and constitutional speech adverted, a prerogative not only claimed but exercised in comparatively recent times. For I find that Queen Elizabeth, of her own mere will, issued writs to many boroughs which never before had returned members; that she added no less than sixty-two to the Commons, and at a time when the ordinary attendance was not above 250. The boroughs thus made Parliamentary by the prerogative, were small places under the complete influence of Peers and courtiers, and she thus introduced into the lower House about one-fourth of its attending Members. Then does this prerogative now exist? If it has ceased, is there any statute abolishing it? The refinement to which some have had recourse, of citing the Act of Union with Scotland, as forbidding by implication any enfranchisement when it fixes the number of the Commons, will not do; for then we must admit that the Crown could by law exercise this power at and after the Revolution. But nothing whatever being said against it in the Bill of Rights, is abundant proof that it had wholly fallen into disuse—or rather that it never existed, but was universally admitted to be an usurpation. I might fatigue your Lordships and myself with numberless other instances to show the folly of having recourse to ancient times for the proofs of prerogative. But I will confine myself to one, and it is a remarkable proof how little in these ages the limits of power of the different branches of the Government were fixed in practice. It shows that the Crown dealt with the acts of the Legislature as arbitrarily as with the proceedings for its formation—with the rights of Parliament as with those of its constituents. It was the constant practice after prorogation, actually to alter the statutes passed during the Session, by directions of the Sovereign, by Orders in Council, and without either the previous authority of the two Houses themselves, or their subsequent confirmation of the changes made. The alterations were usually by the Privy Council, at the time of proclaiming the Act. This extraordinary practice was forbidden by two ordinances, apparently of Parliament, in the reign of Edward II., one in 1311, the other in 1322. Let it be remembered that in those times of high prerogative, when the Royal power was stretched to the uttermost, and seemed to set all other powers at nought, not a single instance can be found of the prerogative now contended for. The notion of changing the nature of the peerage from hereditary to lifehold, seems never to have entered the mind of any of these all but absolute Princes. I then ask those who maintain this prerogative as legal to tell me if they are ready to assert that every right which was once or twice exercised in those days; nay, even every right which was almost habitually exercised, and which no statute has declared illegal, still exists in the Crown? Are they prepared to affirm that the Sovereign could now lawfully issue writs to boroughs or withhold those writs, or could recommend, nay, require certain persons to be elected to the other House, and a whole class of persons to be excluded from the returns? It is denied, and justly denied, that any exercise of the prerogative as to peerages is proved; but I put the question, supposing for argument's sake, that there were proofs of such an exercise.

I have been dealing with the case of Sir John Cornewall, because it is the one mainly, indeed almost solely, relied on by my noble Friends opposite. As to the others, they have been disposed of tonight unanswerably by my noble and learned Friend who moved the Resolution, and in the last debate, by the elaborate and conclusive examination of the pretended instances by my noble and learned Friend near me (Lord St. Leonards). Except that of D'Angoulesme (or D'Angle), who was made Earl of Huntingdon, I Richard II., who was an alien, and who never sat, or could sit, by virtue of the creation for life, all the cases cited were either those of persons who had other peerages, and therefore, did not sit by virtue of their creation for life, as De Vere Earl of Oxford, made Marquess of Dublin; or creations in Parliament, that is by statute, which, indeed, De Vere's also was; or Foreign Peerages like Acquitaine, which was also a creation in Parliament, and given to John of Gaunt, who was already Duke of Lancaster, with the usual remainder to the heirs of his body; or like that of Aumerle given to an Earl by hereditary right, and regarded in England as a foreign and merely honorary dignity. The Thomond case, which is the latest, must also be classed with the foreign Peerages, for it was Irish; and this House could have no power whatever to interfere. It was an Irish Peerage too, bestowed at a time when the English pale comprised but a small part of Ireland. You will find it stated by Dr. Henry in his elaborate and accurate history, that only a few districts on the east coast, opposite to England, were under the English dominion the rest of the country being in the hands of the rude natives. But further, this peerage was granted along with a Barony in the usual terms, and thus the right to sit, if we can speak of sitting in an Irish Parliament at that time, was given, not by the grant for life, but by the grant to the taker and the heirs male of his body. But if reliance is still placed upon that instance, I beg your Lordships to consider by whom, and in what times of the Constitution it was bestowed. It was by Henry VIII., and in the year 1543. Suppose it had been an English peerage, so as to give this House the undoubted right of objecting to the party sitting, what chance was there of the right being exercised against that cruel tyrant, the paroxysms of whose ferocious temper were even more unrestrained than the caprices of his unbridled lust? During the whole of his arbitrary reign, there is not one single instance of a protest against any of the measures which he forced through Parliament, recorded in your Journals. The grant referred to (Thomond) was made after such outrageous acts as his slavish Parliament had passed under the influence of habitual terror, that, for example, of 1529, releasing him from all debts contracted during the last six years, and declaring the securities void though in the hands of third parties; the law of the Six Articles, called by Protestants the bloody Act, condemning to death whoever denied the doctrine of transubstantiation and other tenets, which the tyrant happened then to hold; above all, the Act giving the force of a statute to whatever proclamation he might choose to issue, with any penalty annexed to the disobedience of its commands. This Act vesting absolute power to the Crown (which another of those statutes had given him the power of bequeathing by will) was passed in 1539, and the Thomond peerage was bestowed while it was in full force, in 1543. So that the Thomond case is the exercise of the prerogative, when the Crown was invested with unlimited power; and, after all, it is but an assumption of power to create a Peer for life with rights in Ireland, in England none whatever. It is true, the disgraceful statute of the Six Articles, and that giving the King's proclamations the force of law, were repealed by the Parliament of his successor as soon as the tyrant had ceased to oppress his people. But where is the Act restraining the Crown from dictating to the people in the choice of their representatives? Are the advocates of high prerogative prepared to assert that prerogative because the same Prince freely exercised it, and without opposition at the time, as without even a declaratory prohibition since? Not only did he, by withholding his writ, disfranchise ancient boroughs, and by issuing it, enfranchise new ones, but there remain his orders to the sheriff to elect a gentleman of his Privy Chamber "as Burgess of Parliament, with the fees and wages thereunto appertaining." Whosoever would assert such exercise of the prerogative as enables the Sovereign to pack this House with Life Peers, his dependants, under the name of Peers of Parliament, must be prepared to admit the similar prerogative to pack the other House with his dependants, under the name of the people's representatives.

Now as there is no instance of the prerogative being exercised, I mean the prerogative which alone is in question, of giving a Commoner the right to sit in Parliament by a peerage for life, and which leaves the precedents of peerages to women wholly out of the case, on what other grounds do the advocates of the right rely? On one authority only, that of Lord Coke; because all the writers who have followed have been ruled by that dictum of his alone, and have blindly followed one another without the least inquiry either into the soundness of his opinions, or the grounds on which it rests. For the authority of that great lawyer I entertain, in common with all my noble and learned friends, the most profound respect when he gives you his opinion upon any of those chapters of the law with which he was and which he had well studied. Upon the law of Parliament his authority is of very much less weight—upon that lex et consuetudo Parliamenti which he has himself described as ab omnibus quœrenda, à multis ignorata, à paucis cognita. It cannot be admitted that he has proved his belonging to the latter class.

First, let us look at the reasons on which the dictum is founded. Are they so sound and so consistent as to render the opinion itself a safe guide? There is no little doubt whether or not he really refers to peerage with all its incidents, or only to nobility, to the honour of the dignity without its privileges, especially its Parliamentary privileges; but assume that it does, and that it is an opinion in favour of the prerogative—observe his reasoning. There may be Peers for life but not for years: and why this distinction? Because he says it would go to executors and administrators. Would it indeed? Suppose a grant for five years to A. if he shall so long live. Surely this peerage for years could never pass to A.'s executors or administrators, because it must cease to exist on his death. So a peerage like that of March, granted by Edward IV. to his son, in 1479, to him and his heirs during the king's pleasure, would by the negative pregnant raised in Lord Coke's opinion be valid, because it never could go to executors; and accordingly they who rest their contention on that great lawyer's authority can have no answer to the pretension which may be set up for a further stretch of the prerogative, and must admit that the creation of a Peer to sit in this House during the pleasure of the Crown is valid. Indeed a man may, by this reasoning of Lord Coke, be sent here to take his seat and vote in one debate, because were he to die on the morrow nothing could pass to his personal representatives. It must further be remembered that there is a singular looseness and inaccuracy of expression in the other parts of the passage relied on. Lord Coke says distinctly that a writ calling any one to Parliament gives the party a fee-simple in the barony, which it assuredly does not. It is a common, but only an elliptical expression, that such a writ with sitting gives a barony in fee, instead of the more correct expression of fee-tail. But Lord Coke is by very far more incorrect; and not elliptically so, but by specification. He says fee-simple, whereby is intended a barony that would go to heirs general, and would be indeed alienable and devisable. It is true that he afterwards seems to qualify this, and restrict the generality to what he calls heirs lineal. But it cannot be denied that the whole passage indicates want of full consideration, and leads to doubt, if we have the deliberate and corrected opinion of the author.

If however, we go to the other instances of this great man's known and manifest errors upon matter connected with the law of Parliament, we shall find the most conclusive reasons for rating his authority much lower upon such questions than upon any of the ordinary ones of which he treats—I may even go so far as to say lower than that of any other celebrated lawyer, for none have fallen into more remarkable errors. Thus he lays it down as clear Parliamentary and constitutional law, that privilege is only ousted in case of treason, felony, and breach of the peace. Hence, according to him, no Peer or Commoner could be imprisoned under sentence of a competent court, for such offences as perjury or libel, without breach of the peace; and yet we know that privilege gives no such protection. Indeed Members of your Lordships' House have been imprisoned for the latter offence. So, according to the same authority, no Peer or Commoner could be committed for criminal contempt of court. Yet this has frequently been done, and, after full inquiry in Parliament, has been held perfectly lawful, against Lord Coke's authority, cited freely in support of the pretended privileges. Again, as if, whenever he touches on constitutional points, he were fated to go wrong and to mislead us, he affirms that William the Conqueror could not succeed to the Crown by inheritance, because he was a bastard, his father being married to his mother after his birth, and so the issue not legitimated, by the statute of Morton, which is only declaratory of the common law; whereas, every one knows that his legitimacy or illegitimacy was wholly immaterial, because he was not of the blood of the first purchaser, being, were he ever so legitimate, only related to the Confessor by the marriage of his aunt, and having no more title by inheritance than George IV.'s issue had to the Crown of Denmark, because his aunt Queen Matilda had married the Danish King. But a yet more remarkable error of Lord Coke is committed by him respecting the succession to the Duchy of Cornwall. The Prince's case is one of his most celebrated Reports, and amongst the most elaborate. But he there lays it down as clear law that the first born son alone, being heir apparent, succeeds to the duchy, and that if the eldest die without issue and leave a brother surviving, he, though he be heir apparent, cannot take the duchy, because he is not the first born. This great lawyer was probably misled by a little of that pedantry, the vice of the age, and in which he somewhat amply shared, to hold primogenitus, in the Charter admitted to be an act creating the somewhat singular and anomalous succession of this estate as confining the inheritance exclusively to the first born. But it has since been always held clear that the eldest son, not born but living, if heir apparent, takes the duchy. Lord Hardwicke, who, in the case of Lomax v. Holmden (1 Ves. Sen.) apparently felt so much awe in declaring Lord Coke entirely mistaken, was so far influenced by the power of his name, like my noble and learned Friend opposite and others, not indeed like them so far as to follow blindly, but so far as to make full and searching inquiry, and to examine the acting under the statute, as I now require your Lordships to consider the precedents respecting life peerages. He found that there was not a pretext for supposing Lord Coke right in his doctrine; and added, that he had been as entirely wrong in his statement of the facts as in his conclusion of law. For Lord Coke enumerates many instances of the descent of the duchy; and among others, the case of Henry VIII., who could not succeed, he says, because his brother Arthur was the first born; and therefore, he says, Henry, though heir apparent on Arthur's decease without issue, never took the duchy. But nothing can be more contrary to the known fact. Lord Bacon, in his History of Henry VII., well acquainted, officially well acquainted, as he was with the whole circumstances, states, that Henry did take the duchy as Prince of Wales and heir apparent; and it is certain that he exercised all the powers, and enjoyed all the rights of the Duke of Cornwall, though only second son of Henry VII. This was fully discussed and decided on the decease of Prince Henry, in the reign of James I., when Charles took the duchy in 1613. The Rolls of Parliament show similar instances in Henry IV.'s reign, soon after the erection of the duchy, and again in subsequent reigns. It is somewhat remarkable that Mr. Justice Blackstone, in his Commentaries, follows Lord Coke into this error, as he does on the subject of life peerage; at least, he cites the Eighth Report, and the Prince's case, without taking any notice whatever of the mistake committed by his authority—an example of the manner in which writers are apt to follow one another, and authorising a considerable deduction from the weight due to the learned commentator's statement respecting the subject now before us.

I think, then, we are fully entitled to conclude that these text writers following one another have been led into a manifest error by Lord Coke, who had very carelessly considered the subject. No one can doubt that his opinion would have been against the prerogative had he examined its history, and found no precedent whatever for its exercise. This must needs have been the conclusion of one who so habitually argued from precedents, and only went wrong when he decided without examination of the facts, or from haste or inadvertence mistook or misstated them.

But let me now ask your Lordships to cast your eye back upon the origin of all peerage in the tenure of land; for this will afford important light to guide us on the present question. The right to sit in both Houses of Parliament, that of the greater barons, your predecessors here, and of the lesser barons, the original of the Commons, was from the holding of land, and depended upon that holding; yet barony by tenure, though unquestionably not only existing in the most ancient times of our Constitution, but probably the only species of barony then known, has long ceased to exist. The question of its legal existence was raised in the Berkeley case, and as my noble and learned Friend (Lord Campbell) stated, had been then argued by me at your Lordships' bar, when, as he said, Lord Eldon expressed a very clear opinion that there was no longer such title to a seat in this House; and there was the same opinion given, but more solemnly, by Judges of the greatest eminence in the reign of Charles II., though not sitting in any court of law. All lawyers are, however, now agreed that there is no such thing as a barony by tenure. Then how has it ceased to be good in law? That which was the ordinary, probably the only kind of barony, has become obsolete, has fallen into entire desuetude, without any statutory declaration or enactment, without any judicial decision, without any judgment or resolution of your Lordships; for the Berkeley case never was decided, and the older opinion to which I have referred was not the determination of a court. But that opinion well deserves our attention, for it demonstrates the effects of disuse in extinguishing a prerogative allowed once to have existed; and puts to flight all the arguments of those who now contend that if life peerages ever were granted (which however we utterly deny, and have indeed disproved), the power of conferring them could not be lost by desuetude. I refer to the case of the Fitzwalter peerage before the King in Council. A writ of summons had been claimed by Mildmay as heir general by blood, and adversely by Cheke as entitled to his barony by tenure of land. The question was referred to the three Chiefs, Kelyng of the King's Bench, Vaughan of the Common Pleas, and Sir M. Hale, Chief Baron, with the Ancient Serjeant and the Attorney and Solicitor General. The case was fully argued before them, and they pronounced a clear opinion in these words: "Barony by tenure hath been for many ages discontinued, and is not in being, and so not fit to be revived,"—but those great Judges go further, and add—"nor to admit of any pretence of right of summons thereupon." And the writ of succession was accordingly issued, not to Cheke, who claimed by tenure, but to Mildmay, who claimed by blood. In truth, when the question of any alleged prerogative arises, the use of, or acting upon, the pretended right is of the very essence of the case. There is not, there cannot be, any other rule to go by, any other guide to follow. If the right is exercised by the Crown without dispute, in the face of the other Estates of the Realm, who have an interest and a power to resist it, and who yet submit to it, evidence is afforded of its supposed legality, at least in the times when the unrestricted exercise took place; and this evidence is the stronger, the greater the number of instances, and the longer the period during which the unopposed assertion of the right continued. But a prerogative that never was exercised, or if ever, yet in times where no power existed capable of opposing it, nay, even if exercised when it might have been resisted, but has for centuries been wholly abandoned (and I am putting the case as strongly against my own argument as possible) such a prerogative is gone for ever, and as entirely gone as if it were admitted never at any time, or in any circumstances to have been known. Our whole constitutional law is founded upon this principle; there is no other limit whatever to the prerogative, and but for this principle, the Crown possesses every prerogative which has not been put down by the positive enactments or express declarations of statute.

But barony by tenure is not the only peerage that has fallen into disuse, and is allowed on all hands no longer to exist. The husband of a baroness, in her own right, used formerly to be summoned by writ, and had a right to the summons, sometimes in her lifetime, sometime after her decease, as baron by the courtesy, if she had issue by him inheritable to the peerage. My learned friend Mr. Fleming, by whose industry my noble Friends and myself benefited so largely in our search for precedents, has furnished me with a list of on less than seventeen such peerages in the fifteenth century, between the reigns of Henry IV. and Richard III. But above two centuries ago it was settled, though without any decision of this House, that such peerages had, like those by tenure, no longer a legal existence. Nothing, then, but the lapse of time and entire disuse of the right prevented my noble and learned Friend (Lord Campbell) from sitting in this House jure uxoris six years before his own elevation to the peerage; yet he never dreamt that he had any such title to a writ of summons, because peerages of that description had fallen into desuetude.

I hear in some quarters a perversion of the maxim omne majus continet in se minus; as if the power of granting peerages inheritable implied that of granting peerages for life, taken to be the lesser dignity. There cannot be a greater fallacy; the maxim has here no kind of application. The life peerage is not less than the hereditary; it is a wholly different thing; the two do not stand in the relation of greater and less; the hereditary and life peerage are, in contemplation of constitutional law, different things. They who argue that the Crown can make a life peerage because it is less than an hereditary, must hold that still more it can make peerages for years or at pleasure, because this holding at pleasure is the most feeble of all estates. But though less with respect to the enjoyment of the guarantee, it is in fact greater with respect to the power of the grantor, upon whom it makes the grantee more dependent. If the question of greater and less arises upon the dependence of the Peer, and not upon the extent of his enjoyment, undoubtedly the relation of greater and less is inverted, and the lesser enjoyment answers to the greater exercise of power.

The question now before your Lordships is merely one of constitutional law. After full and anxious consideration, we deny the prerogative to call Commoners to this House for life. This has nothing whatever to do with conferring the dignity, the honour for life, as a mere dignity without a seat in Parliament. That may be legal, or it may not; your Lordships here have nothing to do with it, any more than the Crown or the other House of Parliament can have to do with the decision of the point now before us. I have heard, and with no little astonishment, of an apprehension entertained that there may be some offence given elsewhere if we decide this point of law against the alleged prerogative. Offence to the Crown is of course utterly out of the question. But so, I think, is offence to the other House, which is accused (I can call it nothing less than an accusation) of a disposition to take up the subject. Wishing to avoid all expressions which might even by possibility wear the semblance of disrespect—I will not say I defy them, but only I foretell that they will not do anything so absurd. Prediction is oftentimes dangerous to the prophet's credit, because it leaves him at the mercy of events. Yet will I, from my great respect for that body, venture confidently to predict that if we only exercise our own privileges with combined temper and firmness, asserting them when imperatively called upon, but in no way going beyond them; so will that illustrious assembly, the other House, avoid exceeding the bounds of theirs. Nothing can be conceived, I was about to say, more monstrous, but rather let me say more truly ridiculous, than their coming to any resolution touching our determination of this question, which regards our own rights and privileges alone. As well might we think of interfering with their decisions upon the rights of election, or the title to seats in that House.

The question before your Lordships is of very great moment, and I rejoice that it has been so fully and so temperately discussed. That the constitution would receive an irreparable injury by the unrestrained practice of creating life peerages is admitted on all hands, even by those who support the Amendment. I therefore, as a friend of the constitution, and a supporter of this House's independence and just rights, as maintaining the rights of Parliament against the encroachments of the Crown, am well pleased that a strict investigation of the case has proved the prerogative to have no legal existence, because I bad far rather that the alleged right were shown not to exist, than only trust to it not being abused. I hope, therefore, that your Lordships will now decide against the alleged prerogative, maintaining the peerage of England as in its essence hereditary, and resolving that our Government shall henceforth, as heretofore, consist of an Hereditary Sovereign, Elected Commons, and Hereditary Peers.


said, that important and interesting as this question in some respects was, he could not but feel that at that late hour of the night—past midnight—and on the second occasion of debate, he could not hope to command the attention of their Lordships for more than a short time; but at the same time he felt it his duty to state distinctly what he considered to be the law on the subject, and in what respects he considered their Lordships would act erroneously if they proceeded to exercise functions that did not belong to them, and the exercise of which be believed would be infinitely more dangerous than the creation of a peerage for life, even though there might be no precedent for such a creation for more than 400 years. His noble and learned Friend who introduced this question stated that he (the Lord Chancellor) had erroneously represented that there was no precedent for the course their Lordships were now taking; and he said that the Brandon case did not differ from that under discussion. Now, the two cases were not at all analogous. In the Brandon case the House came to the conclusion that in point of law a Scotch Peer was incapacitated from sitting as a British Peer, and consequently that he could not take his seat in the House in that character. Now, he (the Lord Chancellor) had never said it was not competent for the House to inquire whether a person presenting himself at their bar had any personal disqualification which prevented him taking his seat—for instance, if he were an alien, or if she were a woman. The question in the Brandon case was, that the Crown had conferred a British peerage on a person incapable of being a British Peer, not whether a person presenting himself with a writ of summons should or should not be admitted; for the Duke of Brandon was already sitting in that House as Duke of Hamilton, and that was a matter into which the House was fairly entitled to inquiry. If the question was at all analogous, and if it was a settled point in law that no Baron of the Exchequer, or no person who had been a Baron of the Exchequer, could be created a Peer, then the Committee would be acting right in declaring that Lord Wensleydale was incapacitated from taking his seat in the House, and in so doing they would act strictly in accordance with the precedent set them in the Brandon case. His noble and learned Friend (Lord Lyndhurst) divided his address into several parts: first as to the jurisdiction of the House; then as to the legality of the patent; and lastly, as to the expediency of granting it. As to the jurisdiction, his noble and learned Friend had quoted cases from the Journals of the House to show the legality of the present proceeding; but in his opinion those cases proved just the contrary. His noble and learned Friend referred first to the Banbury case. In that case, it was moved, that there being a person sitting in that House as a Peer, who, it was imagined, had no real right to do so, it was ordered that this person be heard at the bar by counsel. Now, the terms of the notice taken of this matter in the Journals might lead them to suppose that the House instituted proceedings in it proprio motu, and that was the impression produced by the statement of his noble and learned Friend; but, in reality, this was not the case. The first entry in the Journals was dated July 13, 1660, when there was no Parliament properly so called, for the Long Parliament was dissolved in March, 1660, and then writs were issued summoning a Convention Parliament. The Peers, finding the doors of the House open, walked in and took their seats, and there were sons of Peers who claimed to be admitted. Letters were also sent to Peers to take their seats, and he supposed one might have been sent to the person claiming to be Earl of Banbury. About six weeks after the Restoration this person was found sitting in the House; and the Peers, believing he had no right to be there, instituted an inquiry into his case. He was not there by virtue of a writ of summons, but by virtue of claiming to be Earl of Banbury. Parliament was dissolved, and a new one summoned in 1661, but it was not till 1669 that they found the next inquiry taking place into the matter of the Earl of Banbury. The House then referred it to a Committee for Privileges to examine into the claim of the Earl of Banbury to have a writ of summons, as directed to the late Earl of Banbury. In this instance a petition was directed to His Majesty. It was by His Majesty's order that the inquiry took place, and afterwards all that occurred was in consequence of that petition. The only case which seemed to have any semblance of authority was that of the Earl of Lincoln. What were the facts? On Wednesday the Earl of Lincoln presented his writ. No notice was taken of it until it was too late, and consequently the House would not go into an inquiry that day. But he supposed they had some notion that it was not the real Earl of Lincoln, for a reference was made to his pedigree the next day, and on Friday he was admitted to take his seat, everything having been found to be right. That was no authority for what his noble and learned Friend opposite proposed—namely, that the House should come to a vote that a certain subject of Her Majesty could not sit there by virtue of a writ summoning him to Parliament. There had been great confusion in the argument on the law relating to the patent. It was supposed that the patent had. something to do with a seat in that House. Nothing of the kind. When a Peer was created by patent, he first presented his patent at the bar, and then his writ; but the presentation of the patent was made only because the House had a right to know what constituted its membership. If anybody upon the roll of Members was not summoned by writ, the House had a right to interfere, and to present a remonstrance to the Crown, praying that a writ should issue. So much the House might do proprio vigore, and in such a case the legitimate and only constitutional mode of proceeding which the House could adopt was, to resolve not to proceed to business till the House was full. But the patent, even after it was enrolled, was not that which entitled a Peer to sit in the House. He sat because he had received a writ from the Sovereign to attend in Parliament, and it was perfectly indifferent whether he had a patent or not—if he had received a writ he was bound to obey; and there were instances in troublous times where persons had been heavily fined for not doing so. Two cases of that kind occurred at the time of the Gunpowder Plot. Such being the case, even supposing the patent granted to Lord Wensleydale to be as illegal as be supposed it to be legal, would their Lordships, because they thought the patent illegal and that the Government had acted rashly and unconstitutionally, seek a remedy by doing that which he defied them to prove had ever been done since that House was established—by passing a Resolution not to admit one of Her Majesty's subjects who came there in obedience to Her writ, commanding him to give Her his assistance and advice in Parliament? Would they, because they thought the granting of this patent rash and unconstitutional, seek redress by doing that which he defied anybody to prove since the House was a House had ever yet been done? Till that was finally determined, he could not believe that their Lordships would be led into so disastrous a course. A person who possessed a good patent was entitled to a writ of summons; but if he had a writ of summons, he was entitled to a seat in that House whether his patent was good or bad. It was unfortunate that in the reference to the Committee of Privileges, there was no hint of that which they were now going to report. The reference was to examine the copy of letters patent purporting to create Baron Parke a Baron of the United Kingdom for life, and to report thereon to the House; but what his noble and learned Friend proposed was, to declare by a Resolution that neither the letters patent, nor the letters patent with the writ of summons issued in pursuance thereof, could entitle Baron Parke to a seat in Parliament. That was not a legitimate result of the reference. Suppose Her Majesty thought fit to supersede this writ and to issue another; would their Lordships, toties quoties, refuse to admit him—would they say that Lord Wensleydale should never sit in that House under a writ from the Crown? It was, indeed, the most extraordinary defiance of the prerogative he ever heard suggested. Their Lordships had no more right, if a person presented himself at the bar, not being a minor, an alien, or otherwise disqualified, with a writ issued by Her Majesty, to refuse to admit him, than the other House to refuse to admit a person presenting himself with a return from Yorkshire. It was precisely the same thing, save that in the House of Lords, every individual Member had a writ directed to him personally, while for the House of Commons writs went forth to different functionaries in the county, directing that Members should be returned. It was for the Crown alone to say, he repeated, to whom it should issue writs to sit in the House of Lords—save that it was bound to issue such writs to all who were, by patent or otherwise, Peers. There was no appeal from that. If the Crown should be so ill-advised as to refuse a writ improperly, there was one remedy, which the noble and learned Lord had accurately stated—the legitimate and only constitutional mode of proceeding was, for the House to resolve that it would not proceed to business until the House should be "full." But if their Lordships resolved that they would not receive Lord Wensleydale, if he should present himself with a writ, they would be usurping a function which did not belong to that House, and for such an usurpation, the House could only not be called to account, because there existed no means of punishing or calling in question the conduct of either branch of the Legislature. If he were asked, what remedy there would be against the House of Lords in such a case, he could only reply that it was a case which the constitution had not provided for, because the constitution had not supposed it possible that such a case could ever exist, for constitutionally it was not conceived that the King could do wrong, or that either branch of the Legislature could do wrong; but that this would be a wrong and a violation of all law he had not the slightest doubt. There was not even any case approaching to it, unless it were that in such an instance as that of the Earl of Lincoln, the House had, by its Committee of Privilege, taken upon itself to arrest or delay for a very short time the execution of the writ. He (the Lord Chancellor) felt that this was more important to the constitution than the question of life peerages itself. With regard to the legality of the peerage, the subject was exhausted, and he would therefore merely recapitulate the grounds upon which he contended that it was lawful. Lord Redesdale said the presumption was, that the fountain of honour could measure out that honour in any proportion it thought fit. Lord Coke's authority had been sneered at as if it were nothing. He understood that to Lord Coke was mainly to be attributed the formation of the Petition of Right, and he could hardly imagine that a man who had watched, like Lord Coke, the progress of the constitution was to be no authority on constitutional law. He maintained that Sir Matthew Hale supported Lord Coke, because, although Sir Matthew Hale had made comments on those parts which required comment, there was no note on this particular passage in Coke upon Lyttleton, as if he thought it beyond question. Comyn only took the dictum of Coke; but he stated it, because he considered it correct law, and all the lawyers who had ever written on the subject had taken the same view. With regard to the ancient patents of life peerages enumerated in Lord Redesdale's appendix, the noble and learned Lord (Lord Lyndhurst) had said, that they were all conferred with the authority of Parliament; and he (the Lord Chancellor) said, about half of them. What he meant was, that the assensus of Parliament had no reference to the peerages for life; it was given to hereditary peerages as well as to peerages for life; in some cases the grants were stated to be made per ipsum regem, and in others per ipsum regem et totum concilium in Parliamento. He contended that the grants of peerages, though made in the presence of the Lords Spiritual and Temporal and the Commons, were not Acts of Parliament. In the last year of the reign of Richard II. a great number of grants were made, with the assent of the Lords Spiritual and Temporal and of the Commons; but in the first of Henry IV. an Act was passed repealing these Acts of the previous reign. The Duke of Norfolk, who had received one of the grants so repealed, supposed his peerage was gone, and he reverted to his minor title of Earl. About twenty or thirty years afterwards there was a dispute between that Earl and another Earl as to precedence. The question was referred to a tribunal to determine; and the tribunal, not feeling it very easy to decide, and finding that he had been created, in the last year of Richard II., Duke of Norfolk, submitted that such creation put him clearly over the head of his competitor. It was then said that the grant was done away, because all the Acts were repealed by the Act of Henry IV. The lawyers contended that Peers were not created by Act of Parliament, but by the King in Parliament; and that distinction was established to be good. He thought it necessary to revert to that point, though, in his view, it was a very small one. He relied for the legality of those peerages on the fact that all the greatest lawyers had invariably treated them as lawful, and that though there had been no creation of Peers for life such as that of Lord Wensleydale, there had been creations for life with remainder over to others and creations of women as peeresses for life, which clearly established the right. The only question was the propriety of exercising the prerogative. He thought the apprehension that it would be abused was the most extraordinary he had ever heard suggested. How, he would ask, was it more easy to swamp the House of Peers by the creation of life peerages than by the creation of hereditary peerages? If a Government wished only to adhere to the strict letter of law, it was the easiest thing possible to create Peers for life, with remainder to some other Peer or his heirs, so that the number of hereditary Peers would not necessarily be augmented. He did not mean to say that any Ministry would be bold enough to adopt such a course upon any large scale, but he mentioned the circumstance as proving that the prohibition of life peerages would not prevent the evil which it was supposed they were intended to produce. It was true the prerogative of creating life Peers might be abused, but so might every prerogative. The only check which existed applied to that as to every other step of a Government—the pressure of public opinion. He could not admit the argument which had been made use of—that use might be turned to possible abuse. That great convenience might ensue to the country from the occasional introduction of life Peers had not been disputed; but, because that useful exercise of the power of the Crown might by possibility be abused, it was argued that it ought never to be exercised. The question was whether, if such a course was, as he believed it to be, legal, was it advisable on the present occasion to exercise the legal prerogative for the purpose of adding to the judicial strength of the House? For the reasons he had mentioned he felt bound to oppose the Motion of his noble and learned Friend, who, he hoped, would, after what had taken place, at least strike out from his Resolution so much as related to Lord Wensleydale, and leave the terms general, and not personal, as they were at present.

On Question, Whether the Words proposed to be left out shall stand Part of the Motion?

Their Lordships divided:—Content 92; Not Content 57: Majority 35.

Resolved in the Affirmative; Then the original Motion was agreed to; and the said Report to be made to the House.

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