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

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

126

and merits of the individuals by the Government of the
day. then you immediately introduce a doctrine not only
dangerous to the prerogative itself, but which will expose
the whole monarchical constitution of the country to de•
struction. From the moment you determine to act upon
this principle you will have signed the doom of the House
of Lords. It may not be this year, or the next five years ;
but if you admit that principle, and it must be carried to
its ktgitimate consequences, my belief is that the hereditary
aristocracy, which is the support of an hereditary monarchy,
will be shaken to its basis, and that if we ourselves should
be spared the sight, our sons will witness the fall of that
monarchy, which may for a time be upheld by the personal
virtues of the individual who possesses the throne, but
which must fall the very first time its possessor becomes
obnoxious to public censure or distrust.
This nominee system had been abandoned by the
Commons, rejected by the colonies, and was now
sought to be introduced into the Lords. Between
the two constitutional modes of Government—an
hereditary Upper Chamber independent of the Crown
and an Elective Chamber—there was no alter-
native :

My desire is to maintain an hereditary monarchy, with a
balanced constitution of the three powers. To this you
must cling as one of the main sinews, so essential to the
hereditary character of the House of Peers. (Cheers.)
For one, I will not consent without a struggle to see the
House of Peers swamped. (Renewed cheers.) I hope,
therefore, that the question will be referred to a Committee
of Privileges. I desire deliberately and carefully to con-
sider the whole matter, and, if possible, to act with that
committee, but at the same time with a firmness which
becomes this house. I will not consent that the Crown
shall have the power of calling peers to this house by the
mere exercise of the prerogative, or that we shall be denied
t ie right of discussing and deliberating upon the manner
in which the power of the Crown has been applied in the
exercise of its prerogative. I will not consent that we
should deprive ourselves, by our own act, of that which is
essential to every legislative body—namely, the power of
being the judges of our own privileges, and the interpre•
ters of the laws which regulate the rights of those who
have the honour of a seat in your lordships' house.

The Duke of ARGYLL believed the house would not
object to a moderate use of the prerogative, but they
did object to it simply because they feared it might be
abused on some future occasion—a principle upon
which if they were to act at all times any exercise of
prerogative would be objected to. He thought the
danger of swamping the house by the creation of
hereditary peers quite as great as from life peers, and
quoted a passage from Lord Brougham's History of
1832 in support of the view.

Lord BROUGHAM vindicated his conduct in 1832,
and declared that life peerages were inexpedient,
and incompatible to the safety of the Constitution.
Their lordships then divided :

Not content ..
Majority ..

.. 53
.. -26

Not content
Majority ..
Gross Majority .. 33
The motion was accordingly carried.
The house adjourned at a quarter before three
o'clock.

.. 52

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