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London, England, 1856-02-08 00:00:00

and Irish representative peers, who might as well be sup-
posed to be actuated by such feelings as had been alluded
to by the noble lord, and there wore also the spiritual
peers who only held their dignity for life. The strongest
point urged by the noble and learned lord was that which
referred to the power that might be given by this exercise
of the prerogative to swamp the house with peers for life.
They all knew the particular case which was referred to
by the noble and learned lord, which it was supposed would
have given a death blow to the constitution in the time of
William IV., and that was felt by Lord Grey and those
who acted with him, although backed by the country and
the House of Commons. That case had been mentioned in
a book recently phblishedhy a well-known continental po-
litical writer, and he said that be himself should have
shrank from the exercise of the prerogative of the Crown
on that occasion, and be believed that Lord Grey was of
the same opinion, and would have shrunk from exercising
it. He (Lord Granville) did not know whether Lord
Grey would have shrunk from it or not, but of this he
was sure, that it was a case which would or could oc-
cur only once in a century, and if it did occur, he be-
lieved that no Ministry would venture to use such a
power. If it was exercised in the case of a small
number of life peerages it would do nothing to increase
the majority of a Ministry, for in order, to have any effect
there must be a creation of at least forty peerages. For
such a purpose there would be no difference between life
and hereditary peerages, and a Prime Minister who was
ready to create 40 peerages must be touch given to split-
ting hairs if he had not the sense to elect 20 persons like
Baron Parke for the elevation and 20 eldest sons of peers ;
and altogether the distinction between the two would be
so tine that it was not likely a Prime Minister would be
inclined to draw such a distinction in such a combination
of circumstances. There was one other objection of the
noble and learned lord to which he would advert. The
noble and learned lord seemed to think that this step had
been taken in imitation of some foreign aristocracies. Why,
if there was any one thing more fatal than another to fo-
reign aristocracies, it was the great increase of their num-
bers, and the proportionate decrease of their wealth ; and
as regarded the exercise of this prerogative, after all, it
mast be regulated by public opinion, if the consciences of
Ministers and the honour of the Crown were not to be
trusted. He wished to refer to one more document, a
pamphlest which had been addressed to the Duke of Wel-
lington on this question, which was published anonymously
but which was known to have been written by Sir Harris
Nicolas. That pamphlet was very scarce, and he regretted
that it was, fur if it could have been circulated among
their lordships it would have been of more effect than a
dozen speechee. Then it must be considered as an authority
he would clearly ahow,for a blend of his, wishing to consult
it, went to the British Museum, and on inquiring for it
was informed that it was in hand. (Hear.) He went to
another public library where there were three copies, and
was toll that they were iu the hands of three of the law
lords. (Laughter.) Ha -.vould not trouble their lordships
with any extract from the pamphlet, but he would only
read the conclusion.
1. That the creation of hereditary peers, without a suffi-
cient estate being annexed to the title to support the dignity,
is attended with positive inconvenience to the Government,
probable danger to the Constitution, and almost certain de-
gradation to the peerage.
2. That it is desirable that the country should have the
benefit of every description of talent in the House of Lords
calculated to ensure the administration of justice in all the
various cases brought before it.
3. That the impeller of multiplying hereditary peerages
tends to prevent the Crown from placing in the house per-
sons whose peculiar talents and acquirements would be ex-
tremely beneficial to the country.
4. That any measure which would lessen the nmnberof
creations of hereditary peerages would be as satisfactory to
the nation at large as to the House of Lords generally.
He felt that the first part of the sentence was true, and he
looped that the latter part was true also. It would bewrong
for the house to take any rash step to limit the prerogative
of the Crown when it was only intended to strengthen the
house in something in which they were weak, and to gain a
certain advantage to the people. The question of referring
the matter to a committee of privileges had come upon him
by surprise. The noble and learned lord had not said any-
thing stout the illegality of this proceeding, but had put
the matter so much on the constitutional ground that he
could not conceive hoW a committee of privileges, which
was only a committee of- the whole house under another
name, could be the proper 'tribunal to deal with it. If
Cruise's hook on Dignifies was an authority this question
could not be referred to a committee of privileges without
reference to the Crown. On that Ipoint he would quote
some memoranda of Cruise, which were prepared by him for
the Attorney General. The noble earl then read in a tone
of voice almost inaudible, an extract from Cruise, the effect
of which, as far as wo could gather, was, that the Crown
appeare.l from the earliest times to hare been entrusted
with the power, and claimed the exorcise of free jurisdic-
tion to grant life peerages, and that in cases relating to
those peerages the court to which they were referred was
that of the High Constable or Earl Marshal. (Hear.)
When the noble and learned lord talked of the dignity of
that hone; he (Lord Granville) could only say that the
small • shale he had taken in public affairs had been
exercised in their lerdihips' house; and he had only been
able to perform the duties devolving on him by the lcual in-
dulgence which hail always been afforded to him by their
lordships; it was, therefore, only consistency in him to say
that the strongest political feeling he had was one con-
elected with the maintenance of the honour and dignity of
that house, and he thought be was only acting consistently
with that feeling when, in conjunction with his noble
friend (the Marquis of Lenstlowne) he defended the exer-
cise of that proeugative Of which ho was prowl, and which
he believed was consistent with a defence of the rights and
honour of that house ; and he must oppose the referting of
this question to a committcorfor privileges when the noble
and learned lord had not shown what steps were to be
taken and what results were to be arrived at when the mat-
ter reached that coinleittee for privileges. (Cheers.)
Lord ST. LEON"..A.E.DS said that the question for consi-
deration was whether the Crewe, after so many centurion
.of disuse, had the power to grant to all men, not merely to
a lawyer, to assist in the legal discussions of the house,
but to all mete rich or poor, to all men or all women peer-
ages for life. He wished the matter to be considered from
that point of view, not with reference to the persons to
whom the grant was made, bat with reference. only to the
right to confer such peerages at all.- The noble oat' had.
found fault with his noble'and learned friend bebause he
argued the case on moderate grounds, and ho taunted his
noble friend because he led not said that the act in ques-
tion was illegal. He (Lord St. Loonards) would say that,
so far as he could be taken as an authority, ho was prepared
to say that it was illegal—that in hieconscience he believed
it to be illegal—and he would prove it to be so. Ho would
go at once into the question of legality, with only one pre-
vious observation on what had been said by the noble
earl with,regerd to the expediency of this measure. The
neonaecheeof this country was hereditary, and the peerage
of this country had always been called hereditary ; it pose
seised that quality which enabled noble lords to spring up
from the root which their ancestors had planted, and so
to give solidity and value to the character anti decisions of
that house which .could not be obtained by mere life-
renters of peerages. A House of Lards composed of
peerages for life could not stand for a moment before a
House of Commons elected by the people ; and that
class of peerage was calculated to cause its. possessor to ex-
perience some feeling of inferiority when he came to sit
among hereditary possessors of titles ; and in fact that it
would have the effect of altering the character of the house.
The noble and learned lord then proceeded to de d with
the question. of legality of these peerages, which he con-
tended rested entirely on the authority of Lord Coke, who
was a first authority on real property ; but on the law of
dignities, on which subject he was scarcely over sight,
Coke had laid it down that nobility might be obtained by
grant without an act of, law, and the case he put was that
of a woman ennobled by marrying a peer; and therefore,
as a person might become noble by operation of law, the
Crown might make a man or woman noble by grant for
life. Coke spoke of a man or woman, and no woman could
sit or vote in that house. Coke also said that the Crown
could not grant a peerage for a term of years, because then
it would go to the executors or administrators ; and accord-
ing to that, if a grant were made forlo years, if the grantee
should live so long, it would be good ; and what would the
noble earl say to the grant of an earldom for 10 years ?
Ile hoped that the authority of Sir Harry Nicolas, in the
pamphlet referred to by the noble earl, would not be relied
on, for it was full of inaccuracies and illogical reasoning.
All the authorities quoted by the noble earl depended on
that of Coke; and Coke, in the dicta of his which were
quoted, was speaking only of grants of honotue, and not of
tne rights to sit and vote in that house • and it was doing
violence to his meaning to maintain that he was speaking
of the case of life peerages. It was true that Henry VIII.
made two Barons of the Empire Barons of England, but he
never issued writs of summons to them, and they never sat.
Again, James 1., in Coke's own time, granted to Sir James
Hey the title of Lord Hay, with precedence next after the
Barons of England, but without a voice or a seat in Parlia-
ment; and similar eases occurred in Charlesl.'s time. While
in the Earl of Rutland's case, who was the son of the Duke
of York, and others of the same kind, the persons so en-
paled were the eldest sons of peers, and their cases were
no authority. Sir Harris Nicolas had stated what fell from
Lord Coke very unfairly when he said that Cokehad stated
that there were life peerages in the time of Richard
and that they were legal. Lord Coke had never laid down
any such thing, and he was the only authority on which the
arguments in favour of these grants now rested. His re-
pents on these points Ivere not authorities; and in the case
of the Earl of Shrewibary, who was also Earl of Water-
ford, when the estates and title of Shrewsbury were for-
feited in the time of Henry VIII., the judges to whom it
was referred, as reported by Coke, wore of opinion that the
earldom was forfeited also under the act! but notwith-
standing that authority, a decision of their lordships'
house had since overruled that decision, and dehlared that
the earldom of Waterford was not affected by the act of
attainder of Henry VIII. That showed that Coke was not
always trustworthy in these cases. It had been held then
is peeress marrying a peer of inferior grade retained her
original rank ; but that opinion had been overruled, and
the practice now was, Wet a duchess, marchioness, or
countess, marrying a baron, descended to the rank of her
husband. He would run over some of the points upon
which the law of peerage had been altered, not by act of
parliament, but by the force of circumstances. Formerly
it was supposed that a man marrying a peeress in her own
right became entitled to take rank as a peer. That point
was first raised in the 'reign of Henry VIII., and, legal
assistance being called in, it was dad led that no such right
existed. Then it was said that he was entitled by courtesy,
and thet if a commoner married a peeress, anti had issue
by her, he would inherit the dignity as well as the es-
tate. This point, too, was examined into by Henry
VIII., and. the acommission appointed by that monarch
decided tent a man did not acquire any right of no-
bility, by courtesy or otherwise, by marriage. The next
question that arose was whether a peer could alienate his
dignity. Fee a long time it Was thought he could, and
that if a man sold or transferred his barony, the honour
went with it ; but after examination, it was decided that
he could not. Another opinion that prevailed for along.
time was, that a peer could surrender his nobility to the
Crown. That there had been instances of such surrenders
at various periods of the history of the country was true;
but in the Purbeck ca.so, which arose in the reign of
Charles the Second, two resolutions were passed by Par-
liament unanimously, declaring that the right of a peerage
could neither be surrendered, transferred, nor alienated,
even with the consent of the Crown, nor by a fine. In an-
other case the question arose whether, with a barony de-
seended to several daughters, the oldesti was entitled, and
the Crown could claim the right of conferring the dignity
upon her husband if she married ? In this instance, too,
the decision was that no such right existed. Another in-
stance in which the house had interfered, was when;
shortly after the union of Scotlind, it was sought to give
the right to the Duke of Hamilton to sit as an English
duke under the title of the Duke of Brandon. The deci-
sion was that the House of Lords was competent to moll
that the crown did not possess the right it claimed, and
resolved in the negative the question whether the opinion

ofethejadges should be asked as to the legality of the pro-
ceeding. He quoted these cases, not as bearing exactly
upon the one under discussion, but to show what the
course of Parliament had been when anyquestion as to the
right of the Crown had arisen. It would not do to say
that Lord Coke had held an opinion one way or the other,
or to bring his opinion forward as final against the right of
house. The question now before them had never hitherto
arisen, and the precedents which had been quoted in favour
of the right had no bearing' upon it, and could have no
weight whatever. The question was not whether the patent
was legal, but the extent of the validity to be given to it.
In the case of the tutorof Richard 11. the question of the
right had not come before Parliament, as the person iu
whose favour the peerage was conferred died within three
years without issue, and never sat in Parliament. When
Edward 111, married his daughter to a French count, and
desired to confer upon him' the same honour as Richard IL
had bestowed on his tutor, that was the right to sit as a
peer during his daughter's life, Parliament by a unani-
mous vote refused. All precedent showed that the crown
could not grant a dignity involving parliamentary right,
except such as was known and recognised, without the
assent of Parliament ; and he would venture to say that
there was not a single case on record of the recognition or
admission of the right claimed in the present instance—
viz., that the crown might upon its own simple preroga-
tive, create a peer for life, and introduce him into the
House of Lords as a peer of the realm. (Hear, hear.)
When, in the reign of Richard IL, the crown created the
Earl of Oxford Marquis of Dublin for life, and transferred
to him the whole kingship of Ireland, the assent of Parlia-
ment was obtained ; and he had not a word to say against
any grant made by the crown, supported by the concur-
rence of the House of Peers. But that which was one of
the grossed cases on record of the transfer of privilege,
was no precedent for such an exercise of the prerogative
as was now claimed. The right had been exercised, he
was aware, of granting life peerages to women, but in
those cases the question could not come before Parliament, ,
and Parliament therefore had no opportunity of challeng-
ing it. Consequently, so far from those cases being pre-
cedents in favour, he regarded them as precedents against
the right. The noble and learned lord referred to other
cases which had been quoted, but contended they all came
within the same category. -Ho was happy to say that
during 400 years it could not be shown that the crown
had over once exercised this pretended right until the
present time. Ho could not deny that the Government
had many circumstances which, at the first sight, appeared
to be in their favour. They had a man of unimpeachable
character, and a lawyer of first-rate ability ; and they
had also the excuse that they wished to bring legal talent
into the house without insisting upon hereditary peer-
ages. Now, all that looked plausible enough ; but it
would not boar examination. As for the argument which
had been founded upon the creation of peerages with all
kinds of remainders over, ho was really surprised that any
one should have thought of relying upon a fallacy so
transparent. Why those cases actually formed a
strong reason agaiust the proposed new class of peers.
They merely indicated in what, manner the dignity should
descend ; and they at all events showed that they were in-
tended to be hereditary. Again the fact had been pressed
that writs of summons were not always granted ; but what
said an 'authority they would all respect, Cotton, upon
that point? The learned writer stated that writs of sum-
mons always did issue, except the peer was under age or
out of 'the country, or a woman, or iu seine other manner
incapacitated from sitting in the house. Reference had
been made to the right reverend bench ; bat how could
that possibly bear on the question ? The baronies by vir-
tue of which the bishops sat were perpetual dignities, al-
though the persons representing them were continually
changing. Lastly, reference had been made to the Scotch
and Irish peerages : but surely they were as much heredi-
tary peerages as those of England or the United King log.
Indeed it was his decided (pinion, that to create life peer-
ages in this country would be a direct infringement, of the
two Acts of Union. (Hear, hear.) One of the strongest
arguments' however, that could well bo alleged against
the course taken by the Government was the case of Lord
Somers. Lord Somers was asked to accept the great seal,
hat ho declined on the ground that he had not saved au
amount of fortune that-would justify his acceptance of,a
peerage. It was then represented to him that his services
could not be dispensed with. He was therefore made-Lord
Keeper; the- result of which was that he hat as Speaker in
the House of Lords, without being able either to speak or
vote, so that he was placed in the painful position of hear-
ing his judgments pulled to pieces by Lord Mansfield and
Lord Herdwick° without being able to say a word in re-
ply. Lord Somers submitted to that indignity for four
years; but did any one believe that Lord Somers— who
certainly knew something of the constitution—would not
have thought of so simple a device as a life peeeage had
such a thing ever been considered legal ! (Cheers.)
Again, did anybody suppose that the question had not
been' carefully considered at the paSsing of 'the Reform
Bill? (Hear, hear.) On a review of all the circum-
stances of the case, ho must give his decided opinion that
those life peerages were illegal, and he trusted, therefore,
that the Government would advise her Majesty to with-
draw the patent, and issue one in the,usual form: (Cheers.)
The 1,011 la CHANCELLOR bade their lordships take
care lest, in attempting to vindicate the constitution, they
should theinselaes be inadvertently trenching upon it, by
infringing upon the prerogative of the Crown in a matter
upon which they had neither authority nor jurisdiction.
(Oh.) Ho might be wrong; but he thought he should satisfy
their lordships that there was no preeedentewhatever save
one which he should easily be able to dispose of, that could
warrant their lordships in adopting the course they had
bcea asked to pursue. What were the legal consequences
of a grant of nobility ? He took upon himself to say that
they were all privileges and rights without the walls of
that house. That which gave every noble lord around
him a seat in the House of Peers, was, not his patent, but
his writ of summons. Within the last century and a-
half, or two centuries, the Crown had been in the habit of
referring questions relating to writs of summons to their
lordships, and the Crown would doubtless be very ill-ad-
vised if it were not to act upon their lordships' opinion
reported to it. But it was laid down in all the
books,it was the universal doctrine, that in this matter
the ouse of Lords had no original jurisdiction. They had
no more right to say that a will was valid or not valid,
than he was to inquire into the validity of a man's title to
his estate. As he had already observed, the privileges of
the peerage were external to the house. The first and most
important of those privileges was, no doubt, the right to
demand a written summons; but there were also the right
to be tried by, in a particular way, the right of freedom
from arrest, and other important rights. Now suppose,
for example—and he really must beg his noble and learned
friend Lord Wensleydales' pardon for the supposition—
his noble friend was charged with felony, and to
suppose he were to plead his peerage what would a
court of law say if they were told that the House of
Lords had decided against the claim ? This was no
chimerical supposition. In the time of William 111. it
actually occurred. A person named Charles Knowles
pleaded that he was the Earl of Banbury. To that it was
replied that the House of Lords had decided that he was
not deicended from the person to whom the patent had
been originally granted. Lord Chief Justice Holt decided
that the decision of their lordship's was of no moment, and
when he was called to their lordship's bar and asked to ex-
plain, he respectfully refused to do so. The proper time
to try the question that had been raised in the present in-
stance, would be when some descendant of Lord Wensley-
dale—his daughter's son, for instance—demanded his writ
"of summons; and he (the Lord Chancellor) would warn
their lordships against the dangerous course upon which
they would embark if they attempted to interfere at the
present stage. He was aware that there was one instance
which had been much relied upon in the course of this dis-
cussion as a precedent. It was the case of the Duke of
Hamilton, which arose when Queen Anne, two or three
years after the Union, conferred upon him the dignity of
Duke of Brandon, in England. He found by the journals
that on the 12th of December, 1711, it was ordered that
the house would take the subject into its consideration.
There was subsequently a great debate—for the question
assumed, what he hoped the present would not, a strong
• party aspect—and it was resolved that the subject. should
be discussed in the presence of the judges. That was done,
and hefoundthat a motion was made that the judges should
deliver their opinions. The motion was, however, resisted
—doubtless because it was pretty well known what the
judges' opinions would be 2 • audit WAY finally resolved that
the Queen had no power to confer an English peerage on a
Scotchman. That was the solitary and very unpromising
precedent upon which their lordships were now invited to
rely ; for in 1782, when the grandson of the Duke of Hamil-
ton applied for his writ of summons as Dake of Brandon,the
question was referred to the house by the King, and'their
lordships reversed their decision in 1711. Since. he (the
Lord Chancellor) had come into this house, he had been re-
minded of what had passed last session. The question then
was one whether Lord Fermoy had been properly created
an Irish peer. The matter had only been referred to con-
versationally, and it had passed sub silent so, for the case had
been felt to be ono of great urgency, and every one had
been anxious to put his shoulder to the wheel. Indepen-
dently then of what he (the noble and learned lord) might
call the meritS, of the case, he protested against the course
they were now asked to pursue, as a most unconstitutional
attempt to arrogate to the House of Peers a prerogative
which they did not possess. It had never exercised each a
poweroxcept in the case he had referred to, and that widely
differed from this ; for the ground en which the Duke of
Hamilton's Eeglish peerage was opposed was, that the
Queen had no more power to grant a peerage to a Seotchman
than to a foreigner; and the house
,would no doubt be justi-
fied in interpreting where the 'Claimant was a minor, a
foreigner) a rrordan, or any person laboaring under any in-
capacity to sit. Let it not, be supposed, however, that he
(the Lord Chancellor) at all shrunk from arguing this ques-
tion upon its merits. His noble audlearnod friend (Lord St.
Leonards) had gone further than the noble mover of this
motion) and had declared these life peerages to be illegal.
Now he (the Lord Chancellor) never approached a question
with more confidence than he did the present ; and as the
noble and learned lord was no sloubt•equalles as confident,
he was afraid they would offer an exhibition not very cre-
ditable to the certainty of the law. :(A.laugh.) . What he
(the Lord Chancellor) said, and said distinctly, was, both
that the granting of this patent was a legal- act, and that it
entitled his noble and learned friend to his writ of sum
Mons. Now, fortunately or unfortunately, we had in this
country no code to which we could refer. We could only
know our lew by referring to those decisions and those writ-
high in which learned met had from time to ti ale handed
down the legal traditions of our Norman and Saxon minces-
tore. In the first place, then, there was Lord Coke.
lie was almest.ashamed to refer to that eminent lawyer
again; but ho was really on his trial before their lordships.
If this patent was illegal, he did not know that he should
not, be impeached for it, and certainly he should be visited
with the severest censure—unless, indeed, his having taken
considerable pains to' arrive at the truth, were admitted
as Ms excuse. Ho felt that ho was the constitutional law
minister of the crown, and as such he had not hesitated
for a single moment as to the granting of this patent. The
*fi
ee tahuatth (0) rf
Lordtyto
Coke.which 8h
hAersto'Nithliel raenfethroarsitwyaortr‘rotrdingCohkiale,
he would quote a few words from a bookhvhich was not a
law book. He alluded to the "Lives of the Chief -lustices,'
by Lord Campbell—(cheers and laughter)—who spoke of
him as "a constitutional person in our history. It was to
him we einsaacillitiOnlieresewvhaos
owefamiliar to u csl tst
ae plaeltviy,eiern. ofsmriagihttlse.
pElf
are only desidins of making money of their profession,
neglect his wicks, but they continue to be studied by all
who wish to know history and acquire a scientific know-
ledge of our political and judicial institutions." And he
went on to say that " his opus magnunt is his comment on
Lyttleton, which of ibself, may be.said to contain the whose
common law of E Now, what did :Lord. Coke say
in that opus magnum, which contained the whole common
law ? He said, " The king may create either a man or a
woman noble for life, but not for years, because then it
/night go to executors or administrators." There his noble
and learned friend (Lord Lyndhurst) stopped, and inferred
that this meant merely that the king could give a patent
of precedence, or that sort of nobility or rank ; but Lord
Coke wenton to add the word, " as a lord of Parliament."
But that was not the only instance in which Lord Coke al-
luded to it.. There must be a dozen passages in Lord Coke's
works in whichthis was slid. Thorp wasa passage in his Oth
volume, in which the Lord Chancellor called to his assist-
ance Lord Coke, the Lord Chief Baron, and the question

was as to the power of the Crown to resume a grant which
bad been made of the Marshalase. Among other matters,
the case of peerages was discussed, and this was what
Lord Coke gave as the unanimous opinion of himself and
the other judges—" But as the king cannot grant a
peerage for years, which would go to executors or . admi-
nistrators, so without question the king may- create an earl
for life, in tail or in fee." Then there was the case of
Lord Abergaveeny, in the 12th volume of the cases, in
which it was held that a writ of summons did not give a
right to nobility, unless the party summoned sat under the
writ; " but if the king creates any baron by letters patent
under the great seal to him and the heirs of his body, or
for li!e, then ho is ennobled." There were in the library
at Lincoln's-inu the manuscripts copied from Coke that
were in the possession of Sir Matthew Hale, and ewhw
never said a word on that question, and who therefore
treated it as a matter -that admitted of no doubt. Next to
Hale there was Lord Chief Baron Comyns, who had writ-
ten a digest of the law, and under the head, " dignity,"
said, "A man may be created earl or baron by patent,
limited to the heirs of his body, and so it may be limited
only for life." Then Blackstone said that a patent of no-
bility must be in words to direct the inheritance, else it
endured only to the grants for life. There was another
authority. Justice Doddridge, a very able judge in the
time of Charles 1., who said that a patent of nobility
" may be for life, or for some other man's life." The same
thing was laid down in other works, but they were mainly
repetitions of the opinion of Lord Coke. But it did. not
rest there. Some thirty years ago, a committee of their
lordships' house investigated the whole subject of the doc-
trine of peerages; and Lord Redesdale, who wrote their
report, stated that "souse grants had been specially re-
strained to the life of the persons to whom the grants had
been made. He referred to the case of Guiscard de
Denby, who was toad© Earl of Huntingdon. His noble
friend said the patent was cancelled, but that was an
error. A pension was granted by the patent, payable
out of certain lauds. It was afterwards discovered that
there was not power to grant the pension out of those
lands, and another patent was issued granting it out
of other lands. That was in the first year of Richard
11., and in the first, second, third and fourth writs
of summons issued by that monarch Guiscard de Denby
was included. The next case was that of Sir J. Cornewegh,
who was made Baron Fauchope for life. Of the 45 grants
of peerages, from the first of Richard 11. to about the
middle of Henry VI., he should say that more than half
of them wore granted acansa prelates-tun Drocernin com-
inunitatis. Of the 45 grants in that period, 11 were for
the life of the parties, and one for the life of another per-
see. The only one he would refer to was the Earl of Rut-
land, who was the son of the Duke of York, and who was
created a peer for the life of his father---" dmrante vita
dnntaxit." Lord Redesdale' speaking of that
case, said that, if Lord Rutland's fathar had been attainted
of treason, he would not have been Earl of Rutland, or a
peer of the realm any longer. All those persons, to whom
peerages were granted during the life of another person,
had received writs of summons, and some of them were
proved to have taken their seats in the house. He (the
Lord Chancellor) admitted that it was more than 400 years
since there had been any grant simpliciter of a life peerage
to a man ; but where could any distinction be found be-
tween the right of the Crown to grant a life peerage to a
woman, and a life peerage to a man ? All the authorities
for creating women peeresses for life were just as valid, on
the present occasion, as if they had related to peerages for
life granted to men, although, undoubtedly, some of those
:Joints to women were made for not very reputable consi-
derations. Now there had been in all 18 such cases between
the reigns of James I. and George 11., and if the legality
of them were doubted, it must be supposed that such men
as Lords Clarendon, Shaftesbury, Nottingham, and others
of greet eminence, had been guilty of a great neglect of duty
is pessing them by. There were innumerable instances of
peerages granted to persons who were not members of the
house before, with remainder to collateral persons.'Now, if
the collateral branches in such a case had happened to fail, it
would have been sinepliciter a grant forlife, because, techui•
tally speaking, there was no such thing as a remainder of
a peerage ; every remainder was properly a new grant ;
and when a peerage was granted to A for'his life, with a re-
mainder to B, it was, strictly, two several grants. Many
of their lordships now sat in that house by virtue of
grants of that description. So when there was a grant to
a man and to the heirs of his body by a particular wife, it
it should hipper' that there were no such heirs, it would
lee a grant for life only. But indeed he (the Lord Chan-
cellor) need not occupy the house with such arguments as
these, which were probably not at all interesting to them,
for the truth was that it was stated universally in all
writers upon the law, without any contradiction, from
Lord Coke downwards, that the grant of a peerage for life
was perfectly lawful. He thought the house and the Go-
verninent had a right to complain of the two questions of
legality and expediency being mixed up together as they
were in one motion for a reference to the committee of pri-
vilege;. Disguise itas they might, what noble lords wanted
was this, to censure the Government, or at least to express
a strong opinion that such a grant as this ought rot to have
been made, and it was most unfair to attempt it by such
a motion as this. If the noble and learned lord had pro-
posed a resolution declaring it to be the opinion of the
house that this was an improperexercise of the prerogative,
such a course would have been quite legitimate. With re-
gard to the circumstances of this particular case, it was
thought to be desirable that the exercise of this prerogative
should be made ier a case in which no reflectious would be
thrown upon the descendants of the person to whom a life
peerage should be given, as if they had been deprived of
the honour on account of their poverty, and the case of
Lord Wensleydale appeared to be a very fitting one to be
selscted. As for the expediency of such an exercise of the
prerogative, there were reasons which made it poeuliarly
desirable that high legal functionaries should have readier
access to the Legislature than of late years they had had.
The course of legislation in the other House of Parliament
had been to exclude them altogether by act of Parliament.
The judge of the Admiralty Court, who used always to
have a seat there, and whose advice was very serviceable,
was now excluded from the House of Commons. The
Master of the Rolls was not excluded by law, but at the
last general election, the present Master of the Rolls being
a candidate, some people regarded it as a great scandal,
and inconsistent with high judicial functions, for him to go
about canvassing at an election. That opinion, wrong or
right, was one which would tend very much to exclude the
Master of the Rolls from the House of Commons, of which
the noble and learned lord (Lyndhurst), when he filled that
of was a distinguished ornament. Well, that made it
the more desirable, that if the dipataries of the law could
not be admitted into one House of Parliament, they should
he in the other. But how was that to be done, unless they
could e cape in some way the necessity of maintaining an
hereditary peerage ? He knew how it had been done in for-
osi 'er times—by giving grants of money to them from the
public puree • but surely that was not a precedent which
ought to be followed. It was very invidious to speak of such
things in connection with living persons, but there were
some who yet received largo pensions or allowances as a
compensation for cincture offices, which were now abolished,
formerly held in this way by their families. It had been
said that such a precedent as this would lead to the swamp-
ing of that house by the introduction of large batches of
life peers. Now, considering that the hereditary members
of the house were some 450 or 500 in number, he did think
the apprehension of any such number of peers for life being
created as would materially influence its decisions, was
quite chimerical. In the reign of Queen Anue, upon the
occasion when the house came to the decision, contrary to

law, that it was not in the power of her Majesty to grant
a patent of peerage to a Scotch peer, it appeared from
"Burnet's History" that some apprehended that, by means

of the Scotch peers, the court would always have a ma-
jority. That apprehension had proved to be unfounded.
and so would this one. The real check that would prevent
the Government creating any improper quantity of peers
would not be in the absence of the power to grant them for
life, but in that wholesome and ever active control which
was exercised over it by pubic opinion, and which would
make such a step as impossible for it t s the ennobling a regi-
ment of Guards. After referring to the fact which is
mentioned by Mr. Macaulay, in respect to the assistance
by which Lord Somers was enabled to 'maintain his dignity
when created Lord Chancellor, he said that such an expe-
dient of evading the difficulty which this patent of a lire
peerage sought now to escape would be at the present time,
it' not an unconstitutional, a most unwise and improper
act, and the course here adopted was infinitely preferable.
He (the Lord Chancellor) should now be disappointed to
the last degree if their lordships came to any vote which
would imply that this prome°ative of the Crown to create
a life peerage, which had been made available at some
former periods fur disreputable and disgraceful objects,
ought not to be exercised in the present ;age for purposes
which would enhance the dignity and usefulness of their
lordships' house. (Cheers.)
Lord CAMPBELL insisted much on the importance of
this question, which involved, he said, a charge in the
constitution of the country more important than had oc-
curred since the Revolution of 1639—an alteration in the
House of Lords greater than that which was made in the
House of Commons by the Reform Bill. The latter
change occupied and agitated the country for two years ;
but this it was attempted to effect by the Lord Chancellor
directing the Clerk of the Crown to introduce the words,
" during the term of his natural life," into a patent of
peerage, without having consulted Parliament about it,
and without leaving had any expression of public opinion
ou the subject. (Cheers.) It appeared that the Attorney
and Solicitor General had not even been consulted about

it, perhaps because it was well known that as lawyers they
would have disapproved of it. He regretted to hear the
Lord Chancellor say that the House of Lords had no right
to inquire into the legality of this patent. Surely it be-
longed to every delioorato assembly to examine the
qualifications of any one who claimed to sit as one of its
members. When a new peer was admitted, he would
present, kneeling, the patent and the writ, which
together formed one instrument, the writ being merely
ancillary to the patent, by which he was entitled to sit.
Had not the house, therefore, a right to investigate the
validity of the patent ? It was the proper tribunal by which
each a questiou should be tried; and although he (Lord
emaphell), sitting in the Court of Queen's Bench, where
he was accustomed to issue a mandamus to require some
ether tribunals to perform their functions, could not issue
a mandamus against either house of parliament, he might
nevertheless call upon that house to perform its proper
function in the examination of this question. In the case
which had been mentioned of the dukedom of Beaufort,
which was conferred upon the Duke of Hamilton in 1711,
the House of Lords came to what the noble and learned
lord now upon the woolsack called a wrong conclusion, but
there was never a doubt that the house had a right to
determine such a question ; and only last session their
lordships took into consideration the case of the barony of.
Fermoy. This question ought, therefore, to be thoroughly
argued and solemnly decided by the house, for which pur-
pose it should be first referred to the committee of privi-
leges. It was not contended that the patent ought to be
annulled, or the great sealtorn off it; but merely that there
was ground for considering whether the nominee in that
patent had a right to sit and vote in the house. Now, the
law, upon such a question as this, might not be expressly
written or prescribed, but the usage of the constitution was
that by which it should be governed, and that was, that for
the last four centuries no such instance as this had occurred
—not since the constitution and the law of parliament had
been settled. The text books of the civil law, at any
rate, contained some passages that might he quoted to
show the effect of desuetude and of a tacitus coiaenBu3
in abrogating a prerogative or a law, without its ever being
expressly repealed. There was formerly a law requiring
every member of the House of Commons to be an inha-
bitant of the place he represented ; but that law, which hail
never been expressly changed, had long fallen into dime-
tude. The Crown had also the prerogative, in former
times, of sending writs to whatever boroughs it pleased, or
omitting any particular boroughs, for the election of
members of the House of Commons • and he well
remembered, that during the Reform Bill debates, a legal
member of Earl Grey's party startled the house and the
treasury bench by suggesting that the Clown bad still a
prerogative which would enable it to do all that was
wanted by the reformers, to send writs to Birmingham and
Manchester for two representatives from each, and to cease
to send writs to Gatton and Old Sarum, and so disfran.