The Sun.
London, England, 1856-02-08 00:00:00

the common law of the land, it is recited in the charter
that that opposition could only be justified upon the
ground that it had the sancticn of Parliament. There
was a remarkable case in the reign of Richard IL, in
which a patent was granted by the Crown creating Thomas
Woodstock Bail of Bucks, without the consent of Parlia-
ment ; but in a few years afterwards a new patent was
made out, setting forth that this step was taken for the
security of the title of the grantee. It was laid down in
the reign of Elizabeth that a writ, without the insertion
of any words upon the subject, should be held to convey an
inheritance ? Now, on what principle was that law passed ?
Why, upon the principle that, from the earliest p rind, the
right of inheritance lias been deemed an essential consti-
tuent of the peerage. (Hear.) Well, then, we are now
called upon. without exercising any authority upon the
part of this house, to assent sub silentio to the introduction
of a principle which, practically, has not been recognised
in this country for a period of 400 years. (Hear.) This I
say, my lords, is a matter which we ought not to pass over
in silence. I believe the Crown cannot constitutionally

exercise the powers which her Majesty's Ministers now
claim for it. I believe it can do it with no more justice
than it can exercise the authority to appoint a high com-
mission court, or any other power which indisputably be-
longed to it, and which has never boon abrogated. (Hear.)
Now, as to the question of expediency, I may obseiva that
whether it be expedient that Baron Parke should sit in
this house or not is not the real point at issue in the pre-
sent case. The question is, whether it is expedient that
the Minister of the day should have indisputable authority
to swamp the House of Lords to any extent by the creation
of peerages for life. (Hear.) It is all very well to tell me
that the present is an unobjectionable exercise of the power.
By so much is it the more dangerous. (Hear.) The most
perilous consequences have resulted frou some precedents
which in themselves were perfectlyunobjectionable. (Hear.)
If it be the opinion or the Minister of the Crown that it is
desinkble for judicial purposes that there should be an ad-
dition to the number of law lords in this house, let him

bring down a specific plan upon the subject, so that both
the country and Parliament may know the precise limit to
which his authority is to be extended. (Hear.) I find it
laid down in Blackstone that the constitution has eats.-

bliehed certain outworks which tend to preserve the per-
sonal security of the subject—his personal liberty and his
rights of property ; and among these outworks ho enu-
merates the constitutional powers and privileges of parlia-
met t, and the limitation of the King's prerogative by cer-
tain boundaries which it is impossible to mistake. (Hear.)
Now, can we say that the prerogative of the Crown in the
case before us is defined by boundaries of that description?
(Hear.) My lords, if the prerogative of the Crown is to
be fixed, it must b 3 fixed by the practice and custom of
parliament. (Hear.) The case of Lord Somers has been
referred to, in support of the view of the prerogative of the
Crown taken by the noble and learned lord ; but the high
merit of that individual raises in my mind the strongest
augument that such was not the view of the Government
of the day. The noble and learned lord, and those of your
lordships who commenced this discussion, carefully con-
fined the question to the assistance which was iu the pre-
sent instance to be gives to your lordships in the exercises
of your legal functions ; but the noble lord who has just
sat down does not confine the argument to peerages given
to members of the legal profession, but says that men
serving with distinction in the army and navy, and men
distinguishing themselves in science, may sit in your lord-
ships' house, and exercise a co-ordinate jurisdiction. The
noble earl is logical, and says that if you admit this claim
of. Baron Parke, the Crowa will have power to grant peer-
-1 ages for life in other cases. (Hear.) The noble and learned
lord says that the idea of swamping the House of Lords is
visionary. Bat, nay lord', although your lordships' house
may consist of 4 0, in how many cases has it consisted of
less than that numb. r ? (Hear.) And will the noble bid
tell me, not that 50 or 20, but even 9or 10, peers taking
their seats in this house might not altogether turn or alter
its determinations or its votes? (Hear.) Do you think, if
this principle be admitted, that a minister might not sup-
ply the place of a deceased pear by a nominee? But itis said,
Them is no danger, because there is the action of public
opinion." My lords, I say that is a most dangerous doc-
trine. (Hear.) What it mean, my lords? Why, that
the minister must have' with him the opinion of the House
of Commons. (Hear.) The minister may create these
peoraaes. We shall be told that he is acting in deference to
the House of Commons ; and, then, indeed, my lords,
would the House of Lords become a mere cipher. (Cheers.)
I say, my lords, that if you give power to a Minister to
create one life peerage the hereditary character of this
house is gone—its usefulness and its independence are
gone. If you allow this to be done you had better at once
abrogate your functions, and do whatever the House of
Commons may bid you. My lords, you may have a weak
Minister, and if he depends ou a majority of the house, he
may obtain it by appealing to the worst feelings of that
house, and overbearing your lordships, obtain a mporary
renewal of power. (Hear.) You cannot argue this case
on the ;merits of the individual. Whatever may be his
merits, the precedent must inevitably lead to the intr., -
duotion of individuals less worthy, and to the degradation
of your lordships' house. (Cheers.) If you admit the
principle that the Crown may create peers for life and
pleasure, subject to the opinion of this house, and of the
other house of Parliament as to qualification—l say that
you introduce a principle fatal to the privileges of this
house. If you do so, I -say yen have signed the doom of
the House of Lords. (Loud cheers.) It may not come
this year, or in the next five years, but if you admit this
principle, my belief is, that with the heredit try peerage
will be sacrificed the hereditary monarehy—(cheers)—and
that although the monarchy might be upheld by the per-
sonal virtues of the individual possessor, it would fall
with the very first breath of popular feeling. (Cheers.)
To suppose that such a state of things can exist is con-
trary to all reason, and contrary to all expediency. (Hear.)
What, my lords, have we seen in our colonial p assessions ?
They sought to imitate the House of Lords by nominating
persons for life, and they concluded that by making peer-
ages for life they would be independent of the Minister of
the day ; but the consequence has been that every. colony
has declared against the nominee system. Having dis-
carded the (principle in your colonies, will you seek to
introduce it at home? Au Upper House may rest either
on the hereditary character of the house- thus giving it a
stability and firmness which, in my conscience, I believe
no other institution can possess—giving the peer an inde-
feasible interest in your house—not one here to-day and
gone tomorrow ; it may rest on tliat principle which the
British constitution has fixed fcr centuries, or it may rest
on the elective principle. (Hear.) But between the two
questions of an upper chamber and an elective chamber
there is no alternative; and if you seek to build your rip-
per chamber on any such foundation it will crumble to
pieces in your hands. (Loud cheers.) My lords, I hope
we may not live—l hope our sons may not live—to see this
great country degenerate into a republic, however well
suited such an institution may be to other countries ; but
of this I am sure, that if you desire to retain the heredi-
tary monarchy and the constitution of this country, you
must cling to the one main essential—the hereditary cha-
racter of the British peerage. (Great cheering.) I, for
one, my lords, will not consent without a struggle to see
that peerage swamped. (Renewed cheering.) Ido not
say what course I shall think it my duty to ke when this
committee is, as I hope it will las, appointed. I wish to
act with regard to that committee with a firmness becom-
ing your lordships' house (hear) ; but I will not consent to
the principle that the Crown has the power of calling peers
to this house by a mere exercise of its prerogative, and
that we are not to discuss that prerogative. (Cheers.)
Above all, I will not consent to deprive ourselves, by our
own act, of a power which the House of Commons will
not part with, and which, I trust, your lordships will not
part with—the power of judging of your own privileges,
and of being arbitrators and interpreters of the right as
to who shall have the honour of 'a seat in your house.
(Great cheering.) I concur in the motion of my noble
and learned friend, .and admire the ability and temper
he displayed in introducing it to your lordships (loud
cheers) ; and as I think the proposal he has made is
the most moderate and constitutional course your lord-
ships could adopt, so I trust that, without any refer-
ence to party feelings, either on the one side or the
other, it will secure the approval and assent of a consider-
able majority of your lordships' house. (Loud cheers.) _
The Duke of ARGYLL insisted that the danger to be
apprehended from the creation of life peers was not greater
than it was at present. In a published work of the noble
and learned lord opposite (Lord Brougham) to which allu-
sion had already been made, be found it stated that the
Government in 1832 was prepared, if it had been found ne-
cessary, to create :as many as 80 new hereditary peers ; but
the thing was to be done in a manner that would make as
little permanent alteration in the Upper House as possible.
The list was framed so as to consist chiefly of eldest sons
of peers, Irish and Scotch peers, and persons with no fami-
lies. Yet such was the objection of the Ministers to re-
sort to such a step, even during the reform excitement,
that they could hardly have been persuaded, under any
circumstances, to adopt the course he had described.. He
(the noble duke) was satisfied that the objection of most of
the peers present who were inclined to support the motion
was directed not against a moderate exercise of the prero-
gative of the Crown in the creation of life peers, but to its
abuse. He would, however, remind the house that there
were many valuable prerogatives of the Crown and privi-
leges of the people that might be so abused as speedily to
bring the constitution to a dead lock.
Lord BROUGHAM was of opinion in 1832 that the creation
of new peers was a step not only justified, but under the pecu-
liar circumstances of the case required; and from that opiuion,
after the lapse of more than 20 years, he saw uo reason now
to depart. He retained the opinion that the difficulty of the
Government at that time would have been smoothed by the
creation of life peerages. But that was the very reason
which made him say that life peerages were highly inex-
pedient, and he had no hesitation in declaring them most
dangerous to the constitution of the court. (Hear, hear.)
It was dangerous not after the manner of the gross opera-
tion of the carving knife, but by the subtle instilling of
poison. When there was a danger of a close division in
that house, would not the creation of ten or twelve life peers
be highly convenient, but at the same time dangerous instru-
ment in the hands of the Minister. Another objection to the
creation of life peerage was the dependent character of them.
That was the objection made to the creation of life peers in
France, and the answer was that they were necessary to sus-
tain the power of the Crown. With regard to the legality of
life peerages he was inclined to think that he should decide
in favour of their legality if called ou to decide judicially.
But his noble and learned friend opposite said that be should
decide without hesitation that they were illegal. His noble
and learned friend at the table (Lord Lyndhurst) was of
opinion that they were legal. But, notwithstanding all this
variety of legal opinion, his noble and learned thou(' on the
woolsack put the great seal to this patent without even con-
sulting the law officers of the Crown. In matters of far less
moment it was almost a matter of course that the law officers
of the Crown should be consulted, not for the purpose of be-
ing bound by their opinion, but as a matter of prudence and
etiquette. Tbeir lordships were now placed in these grave
circumstance that they were called on to decide on the le-
gality or illegality of these lire peerages. This was not the
place, at all events, for finally deciding on that grave ques-
tion. They were called on now to come to a decision that
peerages for life were consistent with the law. If they re-
jected the motion of his noble and learned friend they decided
the question in favour of legality, and they could not draw
back ; whereas, if they carried the motion, they only took
time to inquire. (Hear, hear.) And in what circumstances
were they going to decide on this—the greatest of constitu-
tional questions that had ever arisen in their day? Were
they going to do so on this night, and on one night's be-
bate ? Would it not be more prudent to postpone their de-
cision, especially as the Lord Chancellor on the woolsack
stood alone amongst the law lords in voting for the rejection
of the motion. (Hear, hear.) He had no patience what-
eVer with those who asked them to decide the question on
the personal merits of his noble and learned friend Lord
Wensleydale. No one had a higher opinion of the talents, the
learning, the judicial experience and judicial services of his
noble and learned friend than he (Lord Brougham) to
1
which he might add a personal acquaintance of between
40 and 50 years. He would say nothing in the argument
of the result of additional legal force. It did not exist.
They could call for the assistance of the equity judges 4
they thought proper. If they decided this question now
without inquiry, it would be recorded in after years that