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

house to refer the patent to tti committee of privileges in
terms that actually prejudged the whole questien. (Hear.)
Thus it should be remembered that a committee of privi-
leges was a committee of tit, whole house, and there was
no greater opportunity afforied in such a committee for
deliberation than in the home. itself. In a committee of
privileges discussion would bo impossible. The noble lord
who advocated that course no doubt had resolutim a pre-
Pared. He (Earl Grey) should like to see those resolu-
tions in the first instance. He was most anxious to pre-
serve the dignity of the house ; and, in the present
aspect of public affairs, it was more than ever important
that the house should preserve its position in the estima-
tion of the country. The noble and learned lord bad de-
clined to give them any intimation as to the course he
Meant to follow, and therefore left the house nothing, for
it but to conjecture what that course might be. If the
Committee of privileges decided against the patent, would
the house refuse to administer the oaths?
Lord CAMPBELL—Most certainly. If the committee
of privileges decided against tho patent the house would be.
bound to refuse the oaths.
Earl GREY could not help thinking that their lordships
would be placing themselves in a false position before the
country if, on such nice distinctions as they had heard,
they were to refuse the writ of summons to Lord Wensley-
dale. The house might refuse, and the claim be carried
to the courts of law; and be there decided ie the affirma-
tive. Would not the house then be in collision with the
judges of the land ? Or if it went to the Howie of Com-
mons, would it be prudent for their lordships' house to
Place itself in collision at once with the Crown and the
other House of Parliament? He a.lvised the house before
they took any steps that might lead to seriousconsequences
to refer the question to a select committee of their lord-
ships' house, and not to accede to the motion of the noble
and learned lord. He was not going to give an opinion
then as to the expediency of granting life peerages, or as to
Whether Government had chosen the proper moment for
raising the question, but this he did sty, that whatever
Might ultimately be their decision, it was not a question
Which should be referred to a committee of privileges.
The Earl of DERBY then rose— My Lords (said the
noble earl), exhausted as the subject has been, and ex-
hausted as your lordships are at this late hour (half-past
12), I shall not attempt to wimpy your lordships at
any great length, as I am sure I can add nothing to the
arguments which have been urged. But I could not recon-
cile it ti myself to give a silent vote on a question which
involves an organic, change of a most important nature in
the British constitution. (Loud cries of hear.) My lords,
I cannot ieconcile myself to this, having the honour of
being here the organ of the great Conservative party, which
never more fitly discharges its high duties than when it
defends the rights of the constitution against violent en-
croachment, whether from the Crown or the people. (Hear.)
I cannot, my lords, permit mytelf to remain silent, feeling
as / do a deep interest in the question, having myself the
honour of being the 14th rei resentative of an hereditary
earldom in this house—of a family which for 400 years has
by hereditary succession had representatives in Parliament,
When I find that the privileges of this house are attacked by
en exercise of the prerogative for which the faintest shadow
of a precedent must be sought for at a period antecedent
to that at which the earliest of my ancestors had the honour
of a seat in this house—(hear, hear)—and when I say the
"prerogative of the Crown," I entreat your lordships to
consider what is really meant by the " prerogative" in these
days, (Hear.) We live, my lords, not in times when the
Rouses of Lords and Commons have to protect themselves
against the capricious' and violent personal encroachments
of the Sovereign. Those times are long since past and gene.
But the prerogative, being the power of doing that which is
not contrary to, or not forbidden by, or isl:nide. the law,
that is a power not vested in the person who wears the
crown, but it is vested in the responsible advisers of the
Crown ; and consequently, in fact, the extent of the " pre-
rogative" is the extent of the irrespoasibility of the advisers
of the Crown. (Hear.) Therefore on every ground we
are bound to see that the prerogative not only is not car-
lied to an illegal but to an unconstitutional extent. (Rear.)
But, my lords, we are met at the outset by a most strange
objection on the part of the noble and learned lord on the
Woolsack—an objection which, it it is to prevail, will effec-
tually prevent your lordships from discussing the question.
The noble lord says, paying a deserved coteplitnent to the
abilities and learning of Baron Parke, that he thought this
t Most favourable opportunity for trying the ;question.
For trying what question ? The cenestion of the power of
the Crown to grant is patent, of peeinge limited to life ?
Row is it to be tried ? When your lot dships propose to
Proceed to try it the noble and leareed lord turns round
,Pon you, and says, you have nothing to do with the ques-
tion, and cannot try it—(hear) —that you cannot deal with
'„,te—that you cannot even inquire into it ! (Hear, hear.)
,e-that areument has been repeated by the noble earl (Earl
Grey) who has just sat down, who said—supposing the
Patent mere waste paper, and that the learned baron- ap•
Plied to take his seat under tho writ of summons alone,
'w,,, y
otild our lordships (he asked) dispute the right of the
:rown to issue summons ? Why, no, say lords. We admit
Zue Power of the Crown to issue such a writ. (Hear.) But
the writ to operate for life, or with remainder? The
noble earl says we may argue the question, but this is not
the
time to do so; that the time to argue it is when the
earned baron under the writ has eat during his life, and
when his daughter's son claims the succession. Then we
are to argue the question whether the learned baron should
(ever have been allowed to sit at all ?" That certainly would
be a strange mode of proceeding. (Hear, hear.) My lords,
I rather adopt the argument of the Lord Chief Justice of
the Queen's Bench : that if the patent had never beets
Placed before es there would have been a clear right in the
Crown to summons the learned baron to this house.
Lord BROUGHAM—Thet would have operated as a
creation of an hereditary peerage.
eeThe Earl of DERBY— It has been held at all times that
rermiloning a person to
nithis house creates a peerage with
inneritance. But wh he learned baron appears at the
table with a patent from the Crown, creating a peerage ex-
Pressly for life, and upon that patent presents a writ—the
Patent and the writ are to be considered as one instrument—
(hear, hear)—and either the patent is void (and the writ
With it), or it must be in the power of the Crown to create
peerage for life, which we say is unconstitutional. Then
What is the time at which we can ever consider the validity
of such a patent ? We must surely discuss it at the time
When it is first attempted to act upon the patent, or else for
ever after we must holdour peace. (Hear, hear.) But, wy
lords, of all the extraordinary arguments ever urged, the
most extraordinary is that which has been urged to-night
by the noble earl (Earl Grey), who says—dittering alto-
gether from the noble and learned -lord on the woolsack,
who tells your lordships that it is no-business of yours at
all that we have a right to inquire; and, indeed, for what
Possible purpose can the patent be presented to your lord-
shipe if it is not to be inquired into ? But says the noble
earl, what a hasty course of procedure is this ! What pre-
Cipitate resolutions you are to be supposed to be about to
adopt in referring the question to a committee of privi-
lege, ! " I confess," says the noble earl, "that there is a
great deal to be said against the constitutional character of
the act ; I know that many arguments may be urged
against peerages for life. I think the Government have
not taken the most convenient mode of raising the ques-
tion ; but do not refer it to the committee of privileges,
,conveying a preconceived impression that the patent is not
'add, uch a course is precipitate." My lords, Ido not
know that it is so precipitate as the course which the
noble and learned lord on the woolsack recommended, who
said that if your lordships doubted the legality of the
Patent the proper course would be to pass a resolution de-
claring its illegality. My lords, of the two courses I think
you have taken the mre moderate course • because, cer-
tainly, if you were to` declare the patent illegal, and that
Under it Baron Parke would have no' right to take his
seat, the noble aed learned lord would have denounced it
as a monstrous proceeding, without inquiry, without exa-
mination of documents, without consideration of prece-
dents, to pass a resolution declaring the illegality of the
Patent. (Hear, hear.) My lords, I rather desire to have
the question fairly considered and argued at the bar by
ceteasel, bringing to bear on it the highest degree of
1 gal learniug, and sifting the subject thoroughly, before
, this house pronounces a decision upon it. But the noble
earl (Rail Grey) having, to my extreme surprise, con-
demned this course as " precipitate," what was the course
which he was prepared to recommend ? To refer the ques-
tion to a select committee ! My lords, all I can say upon
that, is that as the roblO lord moving the committee
Would regularly have the right of nominating it, such a
comets would scarcely be so respectful to the Crown
and certainly not so much in accordance with precedent
and authority as that which is now proposal, t refer it to
the committee of privileges. There have been analogous
cases iu which reference has been-made to the committee
of privileges. In the reign of Charles 1., in the year 1627,
a Patent a precedence was given to a certain earl, and this
house refused to acknowledge it, and referred it to a com-
enittee of privileges. We have here a patent which we be-
lieve to be unconstitutional; we do not call upon your
lordships at once to 1-Renounce it so; but we say, do not
recognise it as legal until it is inquired into. My lords,
having listened to the arguments and precedents which
have beeu adduced, I have come clearly to tho conclusion
that if there be one case, there certainly is not more than
(le, in which the Crown has granted a peerage for life, to
e• party who has ever ever sat and voted in this house, un-
less the patent had the previous assent of Parliament. A rid,
my lords, I have no respect for precedents as to prerogative
going further back than the revolution of 1688. And I
confess that I should net have thought any reference to
Such precedents very consonant with the spirit or the prin-
ciples of a Whig Administration. (Hear, hear.) If, my
lords, we areedhaling with a question of a prerogative of
the Crowe, which has never been attempted by any minis-
ter under the House of Hanover—which was never ventured
upon by any Sovereign of the House of Stuart, or under
the unscrupulous rule of the Tudors—if you have to go
back to the times of the Plantagenets for precedents, nay
lords, instead of one precedent you could produce a dozen
precedents of such a period—they would not be worth
waste paper. (Loud cheers.) I hold, my lords, that
although the right to • create peerages for life may, 200
Years ago, have been within the scope of the law and the
prerogative of the Crown, yet that it is at variance with
the whole practice of our form of Government, and uncoil-
etitntional in its bearing upon the character of this house.
I am prepared to lay it down as a proposition which is
incontrovertible, that from the earliest period the very
essence of the peerage has been that it should be here
ditary. (Hear,. hear.) I do not mean to say that in the
early days of our history that principle was always kept
closely in view ; but this I contend for, that originally the
great barons of the realm, holding their privileges by
tenu re of land, enjoyed the right of hereditary succession,
and were in consequence of their tenure entitled to sit in
Parliament. The issue of writs summoning the barons to
their seats in the 'legislature first became necessary in the
reign of Henry 111., immediately after the battle of Eves-
ham, by which the Crown, after a long series of civil wars,
succeeded in crushing the rebellion of the barons. At the
period of which I speak the necessity of attending in Par-
liament was felt to be an onerous burden, and not a priei-
lege ; and the indifference felt by the barons with respect
to receiving the writ renders any precedents which may be
drawn from their times unworthy of practical considera-
tion in dealing- with the question under your lordships'
notice. But, in after tithes, when the constitution began
to be better understood, what was the rule of law laid
down upon the subject of those writs? Why, that not-
withstanding the absence of all words conveying an inheri-
tance ih the body of the,writ, the fact of satins, in Parlia-
ment under the writ conferred an inalienable right of
sitting in Parliament by inheritance. The Crown took
upon itself to issue patents limiting and altering the cha-
racter of the inheritance; but, I believe, that in every
instance in which a patent,so operated it did not proceed
?rem the Crown alone, but the Crown acting under
the advice and sanction of Parliament—(hear hear)
—and that the Crown, with" the assent of Parliament,
could do this of course no human being will venture to
deny. In the celebrated case of the peerage of the Duke
°I. Cornwall, which was settled in it manner opposed to