The Press. — London, England, 1856-02-09 00:00:00

FEBRUARY 9, 1856. ract6ings in arliamtnt. THE WENSLEYDALE LIFE PEERAGE. In the House of Lords on Thursday there was a very full attendance of peers, in anticipation of this d hate. Lord LYNDHURST, in moving that the letters patent purporting to create Sir James Parke a baron of the United Kingdom be referred to the Committee of Privileges, with directions to consider the same and report thereon, said that the subject was one of no ordinary interest, as it involved the question " whether the ancient hereditary character of the house should continue, or whether it should be broken in upon, and new modelled to the extent and according to the discretion and interest of the Minister for the time being ?" The elevation of Baron Parke to the peer age in this unusual form, it was clear, was intended as a precedent for future occasions, to enable the Minister for the time being to place as many peers in the Lords as might suit his convenience. From the assertion that it was part of the prerogative of the Crown to appoint peers for life, it did not follow that. the exercise of that prerogative was consistent with the Constitution. The position he laid down was, that no instance had occurred for the last 400 years in the history of this country of the elevation of a commoner to the peerage by a life patent. l're vious to that period a few cases of the creation of barons for life, under peculiar circumstances, were on record, but it was during civil wars and confusion, before the Constitution of the country was formed ; a id to make the proceedings of that age a precedent fir altering the established position of either house, was a gross violation of the principles of the Consti tution. Lord Lyndhurst then cited various cases of the creation of baronies for life, from the reign of Richard 11. to that of Henry NI., showing that they differed essentially from the present appointment, inasmuch as one was a foreigner, who could not sit in the house, and the rest, by previous and higher rank, were already entitled to a seat in the house. Coming to a later period, he referred to the peerages for life created by Charles 11. and the Georges, in favour of their mistresses ; and argued that the bestowal of such dignities certainly (lid not justify the Crown in issuing the present patent. Adverting to the great reliance placed upon the authority of Lord Coke, Lord Lyndhurst adduced several in stances when that authority was overruled in ques tions of peerage privileges, and denied that the mere unsupported apse dixit of even Lord Coke was to be held up as infallible. The question was no. one of technical law nor of legal right : The question is this :—Whether, upon certain precedents established 400 years ago, the Crown can at this period, after the settlement of the Constitution, and after the frame of the two houses had been established for a period of nearly 204) or .'IOO years, exercise this right ; or whether your lordships will for a moment think that the exercise of the prerogative of the Crown in this instance can be con sidered justifiable or consistent with constitutional usage and practice? What would he the consequences of such an exercise of the Royal prerogative ? You will from time to time have appointments of this kind repeated —you will become accustomed to them—and 3ou will have this house divided into two classes—part hereditary peers, and part mere peers for life. One great barrier against the creation of peers for the occasional purposes of the Government is the hereditary character of this house. To attempt any such creations at present would be accompanied with great risk. No man would encounter that risk or dare to do it. We all recollect that iu the time of Queen Anne Sunderland and Oxford made the attempt, and that it been a matter of denunciation ever since. But if a few members of the legal profession can be created peers for the short period of their remaining career, how easy will it be for a Minister—an unscrupu lous Minister—and we have had unscrupulous Ministers —how easy will it be, I repeat, for a Minister to carry the system out to what extent he thinks proper for his own purposes? It may, no doubt, be sparingly exercised. It is said that you are not to reason against the pod, because that good may be abused. Ido not accede to that posi• lion. Ido not accede to that position on what I call con stitutional policy. I will give no power that is capable of being abused, unless when it is absolutely necessary, and some good reason requires it. That I have always thought and conceived to be the correct constitutional doctrine. He denied the charge that judicial strength was wanted in the house. Never was there more legal knowledge on which to rely than there was at pre sent. Writs of error were rare, and on important points of common law the house had the power of summoning the twelve judges to its assistance when sitting as the supreme court. What was the real secret of this change in our system?— Is it that, from our frequent intercourse with our friends on the other side of the water, we have become enamoured of their system, and contrasted its vigour and indepen• Bence with the vigour and independence of your lordships' house, and been led to imitate them in regard to the com position of this house? He had no desire to cut down the House of Lords to a life interest, upon which the Senate of France was formed : THE PRESS. The hereditary principle of this house is a great and im• portant advantage. It strengthens our desire to support the stability and constitutional powers of the house. The hereditary principle is entwined with every part of our Con• stitution. We in this house enjoy hereditary rights in common with the Crown. We mutually support and assist each other. As hereditary legislators, we form a barrier and a defence to both branches of the Constitution; to protect them against any danger, from whatever cause it may come. Break in upon that principle, destroy that outwork, and he must be a very bold man indeed wlio will venture to say he could foresee all the consequences that will arise. Lord GRANVILLE felt embarrassed at replying to so able a speech, but the pDverty of law lords in the house compelled him to make the attempt. Lord Lyndhurst, he thought, had confused the legal and constitutional view of the question. The cases he had cited did not bear closely on the matter. The Sovereign had uninteruptedly gone on creating peers in various ways, some by patent, some by remainder for life, and he thought there were precedents to prove the right of the Crown in this respect. In fact, the legality of such peerages had never been disputed, Lord St. Leonards and Campbell in recent judgments admitting this prerogative of the Crown. Some accession to the judicial strength of the house was absolutely required, and there were great objections to the creation of hereditary peerages without corresponding means to support the rank. He strongly opposed the reference of the patent to the Committee of Privileges. Lord Sr. LEONARDS thought that the real question at issue was not so much whetner peers for life might be admitted into that house, but whether, under cover of assisting the legal discussions in that house, the Crown was to claim the right of granting life peerages to all men, and that, too, after the lapse of centuries since the right was exercised. He believed that the power claimed by the Crown was illegal. If peerages for life were created, the whole character of the house would he altered. The learned lord then cited a number of cases through a long period of history, to show that the creation of a life peerage was illegal. The LORD CHANCELLOR thought the present a ques tion upon which the house had no jurisdiction. They were, in fact, raising the question before the time. If hereafter any heir of Lord Wensleydale claimed a right to a writ of summons to Parliament, it would then be for the house to decide whether such claimant was entitled to be summoned or not. To say that the patent was illegal was a fallacy. It was perfectly legal, and the authority of Coke, Hall, Comyn, Blackstone, and others, supported him in this view. He thought the way in which the legality and constitutionality of the question had been mixed up together was a most unfair mode of arriving at a just decision. As to the establishment of the pre cedent leading to a swamping of the house, he re garded that apprehension as chimerical. The whole some control exercised by public opinion would ever render such an abuse of power impossible. Lord CAMPBELL snid an organic change in the Constitution, more important than any since the Revolution of 1689, was sought to be effected without the assent of the peers or the opinion of the public, by a simple act of the Crown. The precedents quoted were inapplicable to the present case : The question which they would have to deciie was whether, under this patent, the individual had a right to sit and vote as a member of that house. He was not prepared to say that it was an illegal patent, although he must add that the more he considered it the more he doubted, and the result might very well be that there was no such power as this of granting to any one, by such a patent as this, the right to sit in that house. In this country we had no written code of the Constitution, but the custom and the usage in constitutional questions must be the governing rule of their decision. (Hear, hear.) For four centuries there had been no instance of a life peerage No doubt there might have been many such peerages in the conrse of time, but they must look to the time when the Constitu tion was settled, and when the law of Parliament was es tablished. If they did not confine themselves to that period, there was no calculating what inconvenient conse quences would follow. The House of Lords at present stood well in public opinion, and there was no necessity for this change. A peerage, according to the present contention, might be created for a night, and twenty peers brought in to carry some particular division. He believed a peerage for life was illegal, and, if not illegal, uncon • stitution al. Lord GREY thought the distinction sound between the illegality and unconstitutionality of such grants. The importance of the question had been unduly exaggerated. No doubt the prerogative of the Crown might be abused, and for party purposes ; but any great abuse was impossible. He thought a life peerage a fit reward for men who had distinguished themselves in the public service. The committee proposed by Lord Lyndhurst could not decide the question. If it could reject the patent, the house could not refuse a writ of summons. The Earl of DERBY supported the motion. He contended that a great organic change in the consti tution of the house was about to be attempted. As the representative of an hereditary earldom which for four hundred years in succession had sent repre sentatives to that house, he could not remain silent where the privileges of that house were attacked by an exercise of prerogative for which the faintest shadow of a precedent was sought four hundred years back. What was meant in these days by the preroga tive ? We live' not in times when the Lords or the Com mons have to protect themselves against capricious and arbitrary encroachments. Those days are long past and gone and the prerogative, being the power of doing that which is beside the law, it is not now vested in the person who wears the Crown, but, as we all know, in the respon sible advisers of the Sovereign. Consequently, the extent of the prerogative is practically the extent of the irrespon sibility of the advisers of the Crown. Therefore, on every ground we are bound to see that, not only is the preroga tive not carried to an illegal, but als3 that it is not stretched to an unconstitutional extent. The question of the constitutional power of the Crown to grant a life patent must be discussed at once. Of the whole of the precedents adduced that night there was only one, and that a very doubtful one, in which the Crown had conferred a patent on a peer for life, and under which that peer sat and voted in the house without his patent receiving the previous sanction from Parliament. Frankly speaking, he bad no respect for any pre rogative of the Crown that dated further back than 1688 : And when I find that we are dealing with the precedents of an exercise of the prerogative of the Crown that has never been sanctioned or ventured upon by any Ministry under the House of Hanover—that was never attempted by any Sovereign of the House of Stuart—that was not even acted upon under the not very scrupulous rule of tho Tudors, but for which we most go back to the dark days of the Plantagenets and to the troublous period of the civil wars—l say that to adduce such precedents, if you can cite a single one bearing directly on the point ( which I dis pute ), is a sheer waste of time and words. He could not draw a distinction, in matters of pre rogative, between what was legal and what was un constitutional:— I understand it is intended to argue that that alone is illegal which is forbidden by direct enactment, and that all not so forbidden may be highly unconstitutional, but is not illegal. It is not worth while to discuss that argu ment, but it satisfies me and destroys the validity of this patent, that, although within the letter of the law as ex pounded two hundr-d years ago, it is at variance with the practice of the Constitution, and is highly unconstitutional in its bearing upon this house. I defy noble lords to deny . these two propositions—first, that there never has been, since the Constitution was settled, nay, not for four hun dred years, an attempt to establish such a precedent as this ; and, next, I defy you to deny that this precedent, being granted, wouid establish a material and serious alte ration in the character of the House of Peers. ( Hear.) Could the Crown exercise this prerogative without the assent of Parliament ? I believe it cannot. I believe it can no more do so than it can reappoint the High Commission Court, or re vive any other thing which has fallen into desuetude, and I think this is not the moment to attempt an extension of prerogative which no Minister has ever ventured to recom mend. The question is not whether it is expedient that Mr. Baron Parke and two or three other eminent judges should have seats in this house during their lives, for the purpose of assisting your lordships in the discharge of your judicial functions, but whether it is expedient that the Minister of the day shall have the indisputable power of swamping the House of Lords by creating peerages for life. The noble lord on the Woolsack had ridiculed the danger of a Minister swamping the house, because the weight of public opinion would restrain him : But that is the greatest of all dangers if, by public opinion, you mean the opinion of the other House of Par liament Suppose the lords oppose a measure which a Minister desires to carry, and which the Commons have passed by a large majority—what more easy than to create a sufficient number of peers to carry the measure through the Lords? The Minister would run no great danger of impeachment, for he would have acted in deference to public opinion, and the consequence would be that this house would become an absolute cipher in the Legislature. My lords, if you admit the power of a Minister to introduce even one life peerage at his discretion, and to keep that peerage dangling from father to son as a bait for further services, I tell you that the hereditary character of this house is gone—its usefulness in legislation is gone—its independence is gone—and you bad better abdicate your functions and intimate your readiness to assent to any thing the House of Commons may please to dictate. This apprehension was not visionary, for the struggle would arise whenever a weak Minister de pendent upon a narrow majority in the other house chose to count upon the worst feelings of the lowest class in that house to retain his power. The precedent would inevitably lead to abuses : It has been said that there is no danger of the Crown grant'ug its favour to unworthy persons; but by whom will the selection of the individuals in whose favour the prerogative of the Crown is to be exercised be made? With that it may he said that this house has nothing to do, but if you admit the principle that the Crown ma 7 create peers for life, but subject to control as to the q