The Sun.
London, England, 1856-02-23 00:00:00

dity. They had, indeed, proceeded on the supposition that
the patent was perfectly valid. It had been said that a
writ without a patent would give a seat, but a writ upon
this patent would be invalid because the patent was only
for hfe. Therefore it was argued that the writ would
be invalid becanle the patent was valid. He denied
that any instance could be found on record of a'person
being refused to enter tho.t house in virtue of a writ
of summons from the Crown, excapt in the case of a
personal and legal incapacity. The course taken by
the Government had been taken upon the authority of
every high legal writer of the country. It was argued
that this power of the Crown had fallen into desuetude
and had thus ceased to exist. But this was in direct con-
tradiction to the well-known dictum, "Nahum tempus
occurint regi." He was indeed astonished to hear from
the noble earl opposite on a former evening that no prece-
dents were of any value unless directly sanctioned at the
time of the revolution. Why, Mr. Hallam distinctly told
us that with the exception of the dispensing power, the
power of the Crown was not diminished, nor that of the
people extended. Mr. Macaulay's authority was to the
wirne effect. He believed that it was more correct to say
that every prerogative of the Crown not impugned at the
revolution of 1688 was still in force.

Lord BROUGHAM said that on going into all the pre-
cedents and authorities since the previous evening's debate,
and examining them in connection with the current history
of the time, he had had the doubt which he originally felt
with respect to the legality of this most unfortunate step of
the Government considerably strengthened. His leaning
had been originally in favour of the legality, though cer-
tainly not the constitutionality of this exercise of the power
of the Crown ; but he had now come to the opinion that
the creation of a life peerage to give a seat in this house is
beyond the royal prerogative, and therefore illegal, accord-
ing to the law and constitution of England ; that life peer-
age—to entitle the holder to sit in Parliament—is now and
ever has been unknown to the constitution of the country,
which has never recognised anything hut hereditary peer-
age. In considering whether any asserted prerogative ie or
is not vested in the Crown, we must go to the exercise of
its power by the Crown in past times; and when he was
told that user or non-user did he not settle the fact of
the Crown's having a prerogative or not, except the fact
were auricle; perfectly clear. Precedents of the time of
the Plantagenets and Tudors would not weigh much with
him as to the Crown's possession of the prerogative. But.
the fact was that there was not a single instance of a life
peerage being created since the constitution assumed a
settled form. The only case which had been dwelt upon
much by the other side was that of Sir John Cornewall,
10 Henry VL, which he said had not been got rid of by
Lord Lyndhurst. The first answer was that the baronies
of Fanehope and Middlomore was conferred by the King,
in the presence and with the advice of Parliament, which
all lawyers admitted to be equivalent to an act of Parlia-
ment. But admitting that one precedent had been found in
the 10th HenrytVl., was there another case, before or
since, in which an attempt has been made to constitute a
peerage for life? And, after all, the only ground for sup
posing this to be a life peerage was the fact that the patent
contained no words of limitation. But if there was here a
creation of a life peerage, what sort of times were these
from which to draw precedents ? The whole of the his-
tory of those times abounded with such violent stretches
of the prerogative. The Parliament of 1401 was held by
writ as usual; but his Majesty directed that no legal man
should be elected a knight of the shire, which gave Coke
the opportunity of stating that no good law was made
thereat. But that was not the only occasion on whichthe
Crown had interfered ; for much later, in the reign of
Hoary VIII., that monarch commanded a certain person,
named Denny, to be elected for a certain borough, and he
was returned accordingly. Well, had that right ever bona
repealed ? No ; and yet it seemed to be held by the other
side of the house, that if you could not point out any such
repeal under the House of Hanover or the House of Bruns-
wick, that the state of things was, talis qualis, just as it was
400 years ago. By the exercise of the royal prerogative in
the reign of Queen Elizabeth, one-sixth part of the House
cf C0M1116.451 was returned. It was only necessary to refer
to these eases in our history to show how little authority
was to be placed in such instances of the exercise of the
royal authority. He would only remind the house of one
other instance to show how little reliance was to be placed
on such precedents ; and that was one in which, after the
close of the session, the laws passed by King, Lords, and
Commons in Parliament assembled, so that in 1832 it be-
came accessary to pass a law restricting in that respect the
royal prerogative in future. The noble and learned lent re-
viewed at some length the opinions of Coke upon constitu-
tional questions, for the purpose of showingthat he was not
a reliable authority upon such matters. As to preroga-
tive ceasing by non use, he had shown many instances.
What was the very orhein of Parliament? why that seats
in both houses should be held by tenure of land, and that
system had never been changed by any direct law. As
long ago as Charles IL, in the Fitzwalter case, it was bald
by the courts that barony by tenure had become obsolete
for ages, and therefore could not be revived. So with re-
gard to the prerogative of creating life peerages, it had not
been exercised even in our ruder ages, and had never been
even attempted for 410 years. Had they then not a right
to say that the present step was an infringement of the
constitution ? The prerogative of creating hereditary
peerages in no way gave the right of creating a life peer-
age with a seat in Parliament. Baronies by tenure were
not the only prerogatives which had ceased. There were
the peerages by courtesy. Husbands of baronesses had
claimed the right of being summoned to Parliament in
virtue of the baronies of their wives. From the time of
Henry IV. to Richard 111., there were no less than 17 of
such baronies. That prerogative had been entirely lost.
He was bound for all these reasons to support the motion
of his Noble and learned friend. If they snpported their
undoubted rights, and performed their just duties, they
would give no offence to the other House of Parliament,
and as to offence to the Crowe he held that to be an im-
possibility, As the House of Lords never could interfere
with the privileges of the House of Commons, hew could
that house interfere with the privileges of the House of
Lords. Why, such a collision would be a conflict of ab-
surdity, and therefore he thought it was impossible that it
could occur. This was a question which touched the con-
stitution, and he joined heartily with hisnoble and learned
friend in support of his motion.
The LORD CHANCELLOR said, that on the second
Light of a debate en thie subject, it was dieficalt at that
time of night to obtain the attention of their lordships.
He would, however, state what be considered to be thelaw
of the case. The noble and learned lord who introduced
the motion had said that he (the Lord Chancellor) had not
followed out the ease of the Brandon peerage iu support of
his argument. What ho (the Lord Chancellor) had in-
tended was, that it was not similar to the present one.
The ease there was, whether the person created Duke of
Brandon was a peremu who could be so created. Why, if
there was a law by which a baron of the Exchequer could
not be created a peer, then this case would be analogous to
that of the Br:olden peerage, and that was his argument on
the former occasions. The case of the Banbury peerage,
so relied on by the noble and learned lord, occurred in
1660, when it might be said that no regular Parliament
was existing. After the Restoration, letters were sent to
the peers, and they assembled, and amongst them was this
epurions leer' of Banbury. He was an illegitimate son ;
and, that being discovered, it was asked by what right he
sat. He petitioned the King for a writ, and the Crown
itself referred the case to the house. (Hear.) Whet, then,
became of that case as an authority ? There was one case
which had the semblance of authority, and if he satisfied
their lordships that the Crown was the undoubted judge
when a writ was issued. He presented a writ on a Wed-
nesday after the usual hour. It seemed to have been sus-
pected that he was not the right Earl of Lincoln, for it was
ordered that his pedigree should be looked into, and when
that turned out to be right he was admitted. That Barely
was no authority for contending that that house had a right
to judge whether the Crown should call one of its subjects
to assist her there with his counsels. A peer slid not sit there
iu virtue of his patent, but of his writ, which he was bound
to obey on pain of fine. That being so, slid not that raise a
great doubt whether, oven if this patent were illegal, their
lordships should seek to gat redress by doing that which had
never been done since this hones was a house, by refusing to
admit one of her Majesty's subjects who came there with
her Majesty's writ. Even supposing the patent in this case
were bed, Lord Wensleydale could not be in a worse posi-
tion thee, if he had no patent at all. If a man had a good
patent he had a right to a writ of summons; if he had a
bad. patent he had not ; but if he had a writ of summons
it did not matter whether he had a good patent or no patent
at all. Their lordships lied eo more right, if a person not
disqualified by statute presented himself at their bar with
a writ of summons, to refuse to admit him, than the other
house would have to refuse to admit a person who had been
returned for Yorkshire. If the Crown issued a writ there
was no appeal from its will. Having explained this,
which he thought of more constitutional importance than
that of the peerages for life—for they were usurging a
privilege which did not belong to them—he should merely
recapitulate the grounds on which he thought this crea-
tion was legal. First, the presumption was that the Crown,
being the fours taro of honour, might dole it out as it thought
fit. Then there was the authority of Coke upon Little-
ton. Both his learned friends who had addressed them
had always spoken as if Lord Coke was no authority on
points of constitutional law. But be thought that was
rather an extraordinary position to hold respecting the
man who was generally believed to be the author of the
petition of rights. Then there was the authority of Sel-
den, of Lord Hale, of Chief Baron C•nryn, of Blackstone,
rd. Hargrave, and, though last not least, the late Lord
Redesdele, who, in his report on the dignity of a peer,
stated distinctly that peerages had been and might be
grauted for life. But he was told there had been no in-
stance's of snob creations. But no one could deny that
there had been abundance of creations in the persons of
itteiustti es; and it was impossible to show that there was any
ion in the minsis of these learned judges between
peerages conferred ou men •nd on women. But there were
other Precedents not oven liable to this 'objection ; for he
could see no difference between a ran. t to a man for life
simpliciter, and a grant. to a man for life with remainder to
.
collateral heirs which took effect
waseraenew grant. 'Then it
was said that the early peerages granted
e. l assensunt or
r consensu parliamenti, and that this was
Trva e to thei
r
being greeted by act of Parliament.
Pose,
rhowever, he
by no means admitted. These grants of
of
Rtzwrcl,rieinot
by acts of Parliament. In the last
great number of these dignities wore granted with the a as
sent of Parliament. In the first year of Henry IV. an act
of Parliament was passed, repealing all the acts passed in
the last yeer of Richard 11. Upon this the Duke of Nor-
folk, who bad been created in the last year of the previous
talon, supposed that his dukedom was gone, and reverted
to the inferior peerage which he previously held. But, on
a question arising on this point.some years afterwards, it
was expressly held by the lawyers of those days that
thee© papers were created by the King in Par-
liament, and not by the Parliament: that it was the
act of the Monarch, and his alone. This, however, was
not a point of much importance in the view he took of
the question. He then came to the question of the
propriety of the manner in which the power in
question, supposing it to exist, had been exercised. This
prerogative of the Crown might be abused, as every ether
prerogative might be abused, but he apprehended that the
only check was that of public opinion. He ilid not think
it a philosophical way of proceeding to argue from the use
to the probable abuse of the prerogative, and it was idle to
talk of the probability of a sat of pauper peers, who would
never be useful, and who would destroy the character of
the house. The only question now to be considered was,
whether in the event of the exercise of the preroeative, it
was not useful at this period to add to the judicial strength
of their lordships' house. He felt bound to oppose the
motion of the noble and
earned lord.
The betties then divided, and the numbers were—
For Lord 141;1(1hrat's motion
Against it .
-e Majorit ....... y
for the ..
... ..............
—35
Theteßae adjourned at 20 minutes past one.

HOUSE OF COMMONS.--(YESTERDAY.)
The SPEAKER took the chair shortly before four o'clock.
PRIVATE BUSINESS.
The fo!lowing bills were severally read a second time
an I ordered to be committed : —Birkenhead Docks,