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

ARLIAMENT.

LOIN-156N, FRIDAY _EvEN NG, FEBRUARY 8, 1856.

E*,;, S,li

ea--
,
s a
children, thaethe lady was created Duchess of Ports- i off every arrear of business in that court. Then there is
his
country,i n fa c ywhb
mouth for life. It can hardly be said that that case made I another noble and learned lord sitting before me (Lord St.
wholaw
of fr froth
s
sembl amen the Sec end was not much distin is
any a ration in the composition of your lerdshiiupe.
niched
I sLaeoy,nianrdtsh)e,
IS sat as immersed,LOr d Chancellorl may
for his ity, though S.er grave tip his crown for his reli- of Ireland with the greatest reputation, and who also held
igion, and he made Catherine Sedley a baroness for life. the office of chancellor of your lordship's house. I ask
iriliam 111. led a regular life, and created no peerages of where a more competent or efficient tribunal could be
Melusine tie Schnlen- sons think that by adding to the number of judges you add
that description, nor were any made in the reign of Queen found for the purpose of administering justice ? Most per-
Anne ; but in the reign of George I.
berg was created Duchess of Kendal for life, and Melesina to the weight and character of the bench. I entertain a
de Schulenberg was also made a peeress for life, but by different opinion. I think that in proportion as you ex-
what title I unfortunately forget. So we went on till the tend the number you lesson the responsibility. I entertain
reign of George IL, when we find the Countess of Yar- the utmost possible .respect for Baron Wensleydale, but I
month became a peeress for life. These are not very ' may say that he is conversant with the common law of
bright colours in our history. It was my duty to refer to England, in which you want no assistance. He is not con-
them, but they do not bear on the question before your versant with the law of Scotland, or with the adnainistra-
lordships. Lady Rivers took a peerage for life, and she was tion of justice in the courts of equity. To place him in
arrested for debt, and applied to theCourtof King's Bench this house for the administration of justice must be a mere
to discharge her on the question of privilege. The question pretence tohjustify a violation of the constitution of this
was ably argued, but the Lord Chief Justice at last said— house. What is the reason of this change in our system ?
"It is questionable whether a countess, made so by patent Have we become so enamoured of the system of Govern.
only for her life, be privileged or no ; therefore let her re- meat of our friends on the other side of the channel that we
main in the custody of the sheriff till Saturday, and not be seek to imitate them in the composition of this house?
turned over to the custody of the mareschall, and then It is but a few weeks since that I read in the elioniteur
move it again." It is quite obvious, therefore, that this an article coming from the highest source, denouncing the
case must be left entirelyont of our consideration, and that Senate of France for want of patriotism, for want of
it forms no warrant whatever for the case we are consider- energy, for want of fitness for the destinies to which they
ime There is another class of cases of this description were called. I have no disposition myself to bring down
where a for life •
peerage is granted, with remainder to a the character of this house to that life interest upon which
second or third son, or some other person. Now that is a the Senate of France is based. Are your lordships will-
mere form of conveyance; it was necessary to put in these ing, by altering the hereditary character of this house, to
to sustain a remainder. In most of the cases to which I diminish the strong sympathy which it possesses with the
am referring the grant of a peerage for life was to a man stability of the Constitution and Crown? You will re-
already a member of this house. There are some cases that member that the hereditary principle is entwined with
do not go so far, because they created not merely an estate every part of our constitution. We enjoy the hereditary
'
for life, but also in tail, and therefore it does not centre- principle in this house in common with the Crown. We
vert the proposition I have laid down, that from the time and the Crown mutually support and assist each
of Henry VI. to the present time, a period of 400 years, other. By the legis-
existence of a body of hereditary
upon
no commoner has been placed in this house by virtue of a lators is formed a barrier to protect the Crown from- every
patent creating a mere estate for life—(hear, hear)—and no attackrin-
its hereditary rights. Break in upon that p
lawyer, no friend to the Constitution, can for a moment ciple—destroy that outwork of monarchy—and he must be
donbi that the instances of this kind occurring before the a bold man indeed, my lords, who will venture to say that
formation of our ConstitutiOn, when the prerogative itself he can foresee the consequences. My lords, this question
was in a state of doubt, never acted upon from that time
is one so extensive, it requires so much careful investiga-
to the present, can never be made to justify a patent time, that it will scarcely be possible for us, discussing it
breaking in upon the long-established character of your in this house, to examine every part of it with the minute-
lordships' house. I come now to a part of the subject ness, attention,ansiacceiracy which the subject reqaires.
which, from all I have heard, is likely to be pressed upon I will propose, therefore, that the copy now upon the table
the attention of your lordships. I mean the opinion of
of these letters patent be referred to the Committee of Pais
that
mmittee to report thereon to this Lord Coke. Lord Coke expressly lays it down that thevileges, for their consideration and examination, and for
house ; and with
Crown, by its prerogative, may create a peerage for
life, but I have before stated that the question is not that °motion I will now conclude. (Great applause.)
what the Crown may do by its prerogative. (Hear, hear.) Earl GRA.NVILLE said he could hardly refrain from
joining in the cheers which greeted the noble and learned
I was in conversation with a noble friend of mine the
other day, and he said, " The crown by its prerogative
lord at the end of his remarkable speech, a speech that was
.te
t. yh,, remarkable even for him. In following one who enjoyed
may send for a troop of the guards, meay make eosveryir
tone
Would
othule
ion . such unbounded popularity among their lordship
s,why
And yet it would be an act within the prerogative, and possessed such great and 'various learning, and such an ex-
dinnaotpetehra'ttbbee paegerrenagte violation of ttohebicsonpstitu
would be strictly legal. Great reliance is - placedtleudptoon tonsive experience, combined, as he (Earl Granville) was
Lord Coke, and perhaps more than he is justly entitled .
I know that in the reign
happy still to see, with a singular degree of vigour, both
made against him that
i mind and body, he felt himself to be at a great disad-
he of
bJwaim lueisdl. down a pu a public
recahtart lgeeawasl
of in
law from his own head and his own authority, without vantage; and it was only the poverty of the house, or at
sufficient vouchers, and I know that on the subject of the least of his side of the question, in the number of law lords
peerage heLord ke was by no meaaysns
doWn infallibl
the law iu the mee. In the very bnner ooks it contained, which obliged him (Earl Granville) to make
i „Co l
which I have stated, that opinion is commented on by a this attempt to reply to the noble and learned lord, which
gentleman of profound learning, the late Mr. Hargrave. he should have hesitated otherwise to have undertaken, as
No man was bettor acquainted with our constitutional he should hesitate to take the command of the Channel
history than the learned gentleman to whom I have re- squadron, or to perform any other feat that would indicate
Espied. He says in his comment that he does not think
the opinion of Lord Coke can be sustained ; he does not more of rashness than of eourage. Their lordships had all
heard with pleasure, he was sure, that graceful compli-
think that the opinion is established by sufficient autho-
rity. The learned author at the same time refers to a case wilt which was paid by the noble and learned lord to the
to which lam about to call the attention of your lordships. former members of his own profession, and to those mem-
It is a law case, but it is one in a very simple form, and bers of it who were now sitting in their lordships' house.
drill be very readily understood by every one of your lord- He (the noble earl) entirely agreed with him in his admi-
ships. It is the case of Viscount Purbeck, who surren- ration of the legal profession, and in his anxiety to have•
tiered his titleto the crown, and the question was whether always the vary best of its members to sit in that
a peer could surrender leis title to the crown. It was ar- house. He remembered that, some quad-ter of a century
gued at great length by Sir William Jones, who in the ago, there was a foolish, absurd cry raised in the country
course of his argument stated, by way of building a de- for the removal of-the spiritual lords
'frona that houie.
duction upon it, that the King by his prerogative might There existed at the present time no such feeling in the
create a peer for life, and he illustrated the main question country; and especially their lordships'would themselves
by arguments built upon that assumption. The learned think it one of the hardest blows that could be dealt
judges who decided the case in this house were men of against their own house, if by a single individual the num-
great eminence—the Earl of Shaftesbury, who had just her of the spiritual peers were to be diminished. (Cheers.)
given up the great seal, the Earl of Nottingham, by whom But if the advantages of having the spiritual lords in that
he was succeeded. When the Earl of Shaftesbury came house were felt, even stronger was the feeling tbat the
to pronounce judgment in the case before him, he re- noble and learned lords who belonged to the legal proem-
ferred to the assumption made by the attorney-General sion were absolutely necessary. to it. Not only in the
as to the King's ability to create peerages for life, and evening debates those nobler and learned lords were pre-
what was the observation he made? He said, 4. You sent, to explain what the law was, and to explain what,
had no right to assume that; that qnestion is even more if a bill p wised. containing certain words, the law would
difficult and more obscure than the main question which henceforth be, but the manner in which the .house had
is before us." It is quite clear that he considered even at received the speech of the noble' and learned lord that
that day that the right of the crown to create a peer for night was in itself a proof- how enorfnously the eminent
life was not only doubtful, but that it was not in point of members of that profession had engaged the esteem and
law to be sustained. There was no man of greater emi- attachment of the house. If such was their value in the
nence than Lord Nottingham, the then Chancellor. He, in debates of the evening, how much More was it to be ap-
his judgment, supported the argument of Sir Win. Jones, preciated when tho'highestjudicial tribunal was united to
and came to the conclusion that the surrender was wrong, the authority of that house h He' believed really that
He adopted most of the arguments of the learned Attorney- there could be no severer blow struck •against the dignity
General, but he passed over the argument to which I have and utility of their lordships' house than any severance of
referred, thereby showing, in the most marked manner, their judicial duties from that house; but, in order that
that be agreed in opinion with the learned lord who 'hail such business might be properly carried on, the house
preceded him. Allow me to proceed one step further. In ought to be well supplied with persons acquainted with
a case before this house, a case of peerage, on *high Lord law—common law the noble and learned lord seemed to
Plunket presided, the opinion of Lord Coke was cited. It have excluded from this consideration—but of peers ac-
wag a clear, distinct, decided opinion, but it was over- quainted with Chancery law, civil law, Scotch law, and
ruled, and Lord Plunket, in giving his judgment, stated other branches of the law a supply must be kept up in that
that if Lord Coke had given 110 reason in support of his house. Now, it had been found difficult to keep up niche
judgment ho might, out of deference to him, have coin- supply of legal lords; and this difficulty hail repeatedly
tided with him ; but as he had stated the reasons, and been felt by former ,governments. A friend, on whose tea
those reasons hail no validity, he felt compelled to decide timony he dEarl Granville) could' rely, had assured 4sinf
against it. My lords, I have stated this case, not to give that he was told by Lord Chatham that'Ldrd Liyerphohe
the ipse dixit of that learned person, bet to show that he government unanimously came, at one porioi, to the con-
took a different view even from thet of such a person as elusion that it was necessary upon that account to make
Lord Coke. But it is unnecessary elaborately to go into life peers; and it was only a change of Lord Liverpool's i
this part of the case. It is not a question of technical law opinion about it that prevented it from being carried out.
—it is not a question as td legal right. The question. is This, which their lordships might think a piece of hearsay
whether, Ott certain precedent% established four hundred evidence and political. gossip, was corroborated by a letter
y rs ago, the Crown can at this period, after the consti. which he would read. He might also mention that in
of both houses, create a peer for lif
e— 1851, under the Administration of Lord J. Russell, an offer
can bo considered as justifiable. of a'lifo peerage was made to a distingnished judge, who
whetherea ie n a l ternaci
lin i
an gp ro c e e d i n g
Now, my lords, I have passed over what I consider the would have been :an ornament to the house, and who
dry part of this subject. I was compelled to go through stated amongst other reasons for refusing that offer, that
it. (Hear, hear.) I shall be followed by some noble although he thought this exercise of the prerogative quite
and learned friends who will supply anything that is fitting, as he continued to think it legal and constitutional
material which I have omitted. I will leave that part and expedient now, he knew the step would be very lin-
ed the care. Now, my. lords, whet will be the coon. popular with his legal brethren,
and therefore he owned
quence of the establishment of such a precedent? Yeti that he hadethe weakness, as he himself said, to shrink
will find this house divided into two classes, ,one being from being the first man to eel such an example. Nosy 1
the hereditary peers and the other peers for life. One that was an answer to the noble and learned lord when he
great bar to the creation of peers for the purpose of an- accused her Majesty's Government of having wantonly
swering any occasional purpose is the hereditary character chosen to begin with the case of Baron Parke, because
of your lordships. No one would willingly encouhter the Baron Parke was not likely to have any children. If a life
risk of creating a great number of hereditary peers. It peerage was illegal an I inexpedient,
it was wrong to offer
was done on one occasion in the reign of-Queen Anne, and it to anybody ; but if the Government were right in think-
lords, ha been a matter of denunciation ever eince. Ant, my it it lc body
expedient, and constitutional, then it was an
if a few men advanced in life 'can-be 'created peers advantage to hdve the offer of it eceepted by a man so during the the remainder of their short career, how easy will nent in his character and merits, and one so completely
it be on an emergency, with an unscrupulous Minister—. separate from any political connexion with the Govern-
and we have had mane such, and may have many more— ment. Now, much was said at the opening of the session
how easy will it bo for him to carry any measure by crest- of the doubtful legality of this ant ; but the noble and
ing peers for life. It is said that this privilege or prerega- learned lord, who hail evidently examined the whole ques-
tire will be sparingly exercised. My lords, do not give tion with so much labour, had shrunk entirely from dealer-
way to thus delexion. It is too easy a method not to be ing it to be illegal. He had been more than usually closer,
had frequent recourse to. I would give no power that is ur doubtless very accurate, in his historicalstatement ; but
capable of being abused unless where it is necessary for he had managed with peculiar skill to confuse the legal, the
some very good reason. That I conceive: to be good eon- constitutional, and the expediency questions together. The
stitutional doctrine. But are there no great authorities noble and learned lord, se bile evading the question of le-
-1
on this subject? I conceive that I can bring before you a gality, had talked about the constitusionelity of the case.
very high authority. A noble lord, formerly the leader of Why, the Government had never contended that if the
the Government in this house, of great constitutional act were wholly inexpedient it could be a constitutional
principle, deeply versed in the constitution of this country, measure; all they contended for was, that it was legal,
considering this house as one of the great bulwarks of our and that being also expedient, it became constitutional,
constitution—that noble lord, for whose memory I enter- and the word " constitutional" could not be defined better
taro the highest respect, had to take a course at a time of than by those two qualifications. The noble and learned
great excitement, when the Reform Bill was opposed in lord had brought forward a supposed case of the Crown
this house; and the difficulty was to overcome that opposi- sending for a regiment of Life Guards, and giving them ill
tion. The question was considered in a great variety of life peerages. That would certainly be unconstitutional,
forms. It was suggested that the eldest sons of peers might and although it might perhaps be strictly legal, the
mow
be called to this house, but it was found that the number course would be, if such a thing were done, to impeach and
of them was by far too small to produce the desired effect. hang the minister who had advised it. The noble earl then
Then it was said that peers for life might be created, and adverted to several of the ancient precedents which had
the matter was considered by Lord Grey, but only to be been noticed by Lord Lyndhurst, and proceeded to quote
rejected. Important as the measure was to be carried, the dicta of Lord Coke, of Selden, Blackstone, and other
agitated as was the country in favour of it, he considered great authorities, as to the prerogative of the Crown to
that it would be a great innovation, attended with dan- bestow peerages for life. tie observed that the noble and
gerous consequences, area subversive of the character of learned lord had spoken of a maxim of desuetude taking
this house, and it was rejected ; and I believe that not away from theexerciseof such aprerogative, but had quoted
only that great statesman eutertained that opinion, hut that no passage from the books to prove it ; and he (Earl Gran-
our then Sovereign, William IV., declared that he would ville), though not learned in the law; had understood there
never consent to the adoption of such a course. Do not wire some such 1113XIMS as Arullunt tempus oceurrit regi,
conceive, nay lords, that this is the sole authority on which which would have prevented the prerogative being affected.
I rely. At the time when the great measure of the nation The Crown had a right to veto a bill in Parliament;though
with Ireland was proposed it became necessary, for the it had not been exercised for 150
s•
. But
purpose of carrying it, that a great number of peers should the fact was that there had not been one uniform mode id
be created ' • and so great was the number, that in the conferring peerages ; but some were given
to a man with
Union Act a clause was introduced providing for the gra- remainders to the heirs male, some limited to the heirs
dual reduction of these peerages. And do you suppose male of his own body, some with very extraordinary re-
that that great statesman, Mr. Pitt, who directed all those mainders, of which-he believed there was an instance now
proceedings, would have agreed to diminish those peerages in the house, namely, a peerage given with remainders
unless he had thought such a course was requisite ? No ono that skipped a generation, and went to the second son of a
can say that the influence of government in this house is daughter who never herself enjoyed it at all. Practically
not sufficiently groat; but if you create a new class of the Crown had been exercising that discretionary power
peers, many of whom will be desirous of having a limited in the mode of its bestowing peerages which was implied
peerage extended to their successors, you create a new in the maxim, C16J.144 est dare, ejus est disponere. The
species of subserviency, and you augment the influence noble earl then quoted the language incidentally used by
which is already sufficiently extensive. I remember a cry Lord Lyndhurst himself, when sitting as Lord Chancellor
used to be urged with regard to the prerogative of the is the case of the Earl of Devon, admittingt, the poesi-
Crown in the translation o:the members of the episcopal bility of a peerage being legally bestowed by the Crown
bench. It was said that those translations ought no longer for life. He next took notice of an occasion when Lord
to be tolerated, that they rendered the prelate too sabser- Redesdale suggested that the holders of ' certain offices
'Tient to the minister of the time, and it was in consequence should sit as peers in Parliament during the time they
of this that the incomes of the bishops were equalised. held such offices; and observed that, in speaking of an.
But what are you now doing? You are creating a new other case, Lord Campbell once said that the Crown
body, to be placed in the same situation, in the same posi- might grant by its prerogative a peerage for life. These,
tion of subserviency. It is said that the prerogative is only he annomicecl amidst the laughter of the house, were his
to be exercised in reward for great and eminent services. authorities for the legality of this measure. After adverting
Will you place men who have served their country in the to the note upon Lady Rivers's case, which note he showed
highest positions—who have bled for their country—who could not have been written by Mr. Hargreaves, being
have by their exertions added to the power and glory and found only in an edition subsequent to his death, but
the character of the nation —will you place them in a class was probably written by Mr. Butler, or by some other as-
lower than those who reflect only the lustre of persons who sistant in the work, the noble earl read a long letter of
have themselves been distinguished by similar services ? I ' Lord Eldon s, which will be found in the biography of that
do not
moutho the length of the old Roman poet, who put into eminent personage, in which Lord Eldon had canvassed
the of the Grecian warrior these words : the propriety of bestowing a peerage on the Chief Justice
Nam genus et proceros et gum non fecirnus ipsi
Vix ea nostra voce. of the King's Bench, and commented on the pesaniary
I do not
circumstances of some of the judges who were at that time
go that length, bat I say that while I respect the most eligible for promotion, with a view to their capability
descendants of men who have done great and glorious deeds of supporting the- expenses-of the dignity of the peerag f
for their country, I respect still mere those by whom the ' for their families ; and, amongst ether things, Lord Eldon
great and glorious
deedsdeds have been done, (Hear.) It is said, "I assure you that I have often thought, that if I had
said that this is to nfined to members of the profes- survived the acceptance of the peerage but a short time, I
'ion of the law. 'What has the profession of the law done should have found that I had accepted what would have
that it is to be brought into this humiliating position ? I been a nuisance to my family, and no benefit to the pub-
say, and. with perfect confidenc
this e, appealning to every man lie." He considered it one of the most precious privileges
aequainted with the history of coutry, that no body which a countryposeessed, that anyman could byhis merits
?f men have been more distinguished and
more successful become a member of that house; but looking to the view
In their exertions is supporting the liberty and maintain- of the question he had just stated, he would venture to say
mg the constitution
hhhon
of
th of this country than those in the pro- that, without making undue reference to the wealth of his
0 law. I hear it sometimes whispered that noble and learned friend (Lord Campbell) it was well known
their descendants are not so distinguished. I look round that he had enj
the'
lent lord distinguished
this house, and gat a large and lucrative practice, that e
See near MO, one of them a noble and gal- was possessed oftes in Ireland, was the master ofd
iai, for personal bravery, one of the house in the aristocratic quarter of the town, and that his
ablest officers
and see a noble beer Majesty's service. I look further, eldest son bad entered into public life • but supposing he
always attentive to his duties in put the converse of that case, and if the'
circumstances of
this house, acute, laborious
always to speak with his noble and learned friend had been different, and he had
overpowering and coremnalini.i? igising
ehemence, and I find him had only his official salary to live upon, would
the descendant of a learnean- it not have
justice. I see another been likely that his son would have been unwilling to suc-
with intelligence and impartialiryt Itlt:effi
ccsetlmwahtiiocnh
noble lord, holding a tlistinecalteif
teed totbo peerage ? and yet' it would have been hard
lordships. I rem em her a noble lord, lately obfeyfioullis• upon Sir John Campbell, and hard upon that house, if
at the head of her they hadhheen deprived of his valuable services. The noble
Majesty's Government, exclaiming in a
.• l'he
are moment of excite- and learned lord (Lyndhurst) had referred in his argument
meat and with great bitterness
lawyers in this house." (Laugher.) I think°ver-ridden by to the point of the probable dependence of that house upon
over if this new the ministry likely to be created by the
system wero introduced, we should be so looking forward
the noble ford would hastily take hie flight irulden that by possessors of life-peerages to hereditary titles. Why,
It is said that we want judicial strength in' if when they were created, and had sufficient fortunes
discharge
the law business. Never was there so unfo
thoisthhenun3oeritthe; and chose to do so, they might claim hereditary peerages.
united But was there no similar influence now at work in that
a charge. I will say that this house never at any mo e
had more legal strength, more legal knowledge on which ntot house, was there no baron who wished to be a viscount—
rely, than at present. There is my noble and learned friend.
no viscount who desired to be an earl—no earl who desired
OD the woolsack, educated in equity, removed to the to be a marquis ? Was there none of their lordships who
with uni-
common-law bench, sitting there as a judge, re not desirous of a step in the peerage ? Was there no
renal praise of the profe • anti the public. Then duke who would like to have the riband of the Garter, or
profession
for four years in the Court of Chan- such fairY b'a no
'iveb. '
there is Thy noble and learned friend (Lord Brougham) his count ws tg. i uld anone say that
ne, Or WO
rformed what yip, considered a moat ax- 9 • . ,
triordiwuy act, by pencil:sml uitry, until he Went e there were alroady soola cl
eery, and ye
who presided
.p nuittal .
o jects of am Aeon were not to be tolerated or
As to the creation of two classes of peers, why
mice 11l 0 0419 of the qp
---- - •
. the

of the jadges should be asked as to the legality of the pros
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 any question 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 preeedents 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 tutor of Richard 11. the question of the
right had not come before Parliament, as the person in
whose favour the peerage was conferred died within three
years without issue, and never eat in Parliament. When
Edward 111. married his (laughter to a French count, and
desired to confer upon him tho same honour as Richard 11.
had bestowed on his tutor, 010 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 11., 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
tho grossest 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. Coneequently, so far from those cases being pre-
eeeents 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. He was happy to say that
daring 400 years it could not be shown that the crown
had ever once exorcised this pretended right until the
present time. He could not deny that the Government
had many circumstances which, at the first sight, appeared
to be in their favour. They bad 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 bear examination. As for the argument which
had been founded upon the creation of peerages with all
kinds of remainders over, he was really surprised that any
one should have thought of relying upon a fallacy so
transparent. Why those cases actually formed a
strong reason against the proposed now 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 Rot always granted ; but what
said an authority they would, all respect, Cotton, upon
that point? The learned writer stated that wilt* of sum-
mons always did issue, except the peer was under age or
out of the country, or a woman, or in some other manner
incapacitated from sitting in the house. Reference had
been made to the right reverend bench ; but how could
that possibly bear on the question? The baronies by vir-
tne 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 Kingdom.
Indeed it was his decided opinion, 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 be alleges( against
the course taken by the Government was the case of Lord
Somers. Lord Somers was asked to accept the great seal,
btit he declined on the ground that he had not saved an
amount of fortune that 'would justify his acceptance of a
peerage. It was then represented to hini that his services
could not bo dispensed with. Ho was therefore made Lord
Keeper, the result of which was that he sat as Speaker in
the Rouse of Lords, without being able either to speak or
vote, so that he was placed in the painful position of heir-
dug his jud,gnients pulled to pieces by Lord Mansfield and
Lot fileerkwicke without being able to say.a word in re-
ply. Lord-Sinners. 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 peerage 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, he must give his decided opinion that
these life Peeragea were illegal, and he trusted, therefore,
that the Government would advise her Majesty to with-
draw the mitent, and issue one in the usual form. (Cheers.)
The LORD CHANCELLOR, bade their lordships take
care lest,' in attempting to vindicate the constitution, they
should themsolvea- 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 precedent whatever save
one which he should easily be able to dispose of, that could
warrant their lordships in adopting the course they bad
been 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 ha!)it of
referring questions relating to writs of summons to their
lordships, and the Crown would doubtless he 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 House 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 tho 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 Lent ArensleYdales' 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 Le was
not descended 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 ho 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 proent 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 coarse upon which
they would embark if they attempted to interfere at the
present stave. He was aware that there was one butane()
which had been ranch 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 himthe 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 be 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 he found tha t 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 ; and it was 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 Duke of Brandon,the
question was referred to the house by the King, and their
lordships reverend 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 Melt peer. The matter had only been referred to -con-
versationally, and it had passed sub sileatto, for the case had
been felt to be one 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, be 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 exorcised such a
powerexcept in the case he had referred to, and that widely
differed from this ; for the ground on which the Duke of
Hamilton's English peerage was opposed was, that the
Queen had no more power to grant a peerage ton Scotchman
than to a foreigner; and the house would no doubt be justi-
fied in interpreting whore the claimant was a minor, a
foreigner, a woman, or any person labouring 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 andleerued friend (Lord St.
Leonardo) had gone further than the noble mover of this
motion, and had declared these life-peerages to be illegal.
Now be (the Lord Chancellor) never approached a question
with
.more confidence than ho did the present; and as the
noble and learned lord was no doubt equally 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 lawby referring to those decisions and those writ-
ingsein which learned men had from time to time handed
down the legal traditions of our Norman and Saxon ances-
tors. In the first place, then, there was Lord Coke.
He was almast ashamed to refer to that eminent lawyer
Again; but be 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 his excuse. He felt that be was the constitutional law

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 were 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 exorcise
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 published by a well-known continental po-
litical writer, and• he said that he himself should have
shrank from the exercise of the prerogative of the Crown
on that occasion, and he 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 iu 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 much given to split-
ting hairs if he had not the sense to elect 20 persons like
Baron Parke for the elevation and 20 eldest sous of peers ;
and altogether the distinction between the two would'be
so fine 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
pamphlet which had been addressed to the Duke of Wel-
lington on thisquestion, 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, for if it could have been circulated among
their lordships it would have been of more effect than a
dozen speedos. That it must be considered as an authority
he would clearly show,for a friend of his, wisbing to consult
it, went to the British Museum, and on inquiring for it
was informed that it was in band, (Hear.) He went to
another public library where there were three copies, and
was told that they were in the hands of three of the hw
lords. (Laughter.) Ho would 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 attendedwith positive inconvenience to the Government,
probable danger to the constitution, and almost certain tic-
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 impolicy 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 nuMber of
creations of hereditarypeerages would-be_ as .satisfactory to
the nation at large as so the House of, Lords generally.
He felt that the first part of the sentence was true, and he
• hoped that the latter part was true also. It would be wrong
for the house to take any rash step to limitthe prerogative
of the Crown-when it s/as 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 about the illegality of this proceeding, but had put
the matter so much matte 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 Dignities was an authority this question
could not be referred to a committee of privileges without
reference to the Crown. On that ipoiut he would quote
some memoranda of Cruise, which were prepared by him for
the Attorney-General. The noble earl then reed in a tone
of voice almost inaudible, an extract from Cruise, the effect
of which, as far as ivo mad gather, was, that the Crown
appeared from the earliest times' to have been entrusted
with the power, and claimed the exercise of free jurisdic-
tion to grant life peerages, and that iu 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 house, he (Lord Granville) could only say that the
small share he had taken in public affairs had been
exercised in their lordships' house; and he had only been
able to perform the duties devolving on him by the kind in-
dulgence which had always been afforded to him by their
lordships; it was, therefore, only consistency in him to say
that the stroegest political, feeling he had was one con-
nected with the maintenance of the honour and dignity of
that house, and he thought he wasonly-acting consistently
with that feeling when, in conjunction- eeftei his• on o+
friend (the Marquis of Lansdowne), he defended thQ,PSor:
else of, that prerogative of which he was proud, amieWiefeb-
ha believed was consistent with a defence of- the eightriaqie
honour of that house ; and ho must oppose the referring of
this question to a committeertfor privileges when the noble
and learned lord had not shown what steps were to he
taken and what results were to be arrived at when the mat-
ter reached that corn:l.-Mee fur privileges. (Cheers.)
Lord ST. LEONARDS said that the question for consi-
deration was whether the Crown, after so many centuries
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 men rich arpoor, to all men or all women peer-
ages for life. He wished the matter to be considerel from
that point of view, not with reference to the persons to
whom the grant was made, but with reference only to the
right to confer such peerages at all. The noble earl had
found fault with his noble and learned friend because he
argued the case on moderate grounds, and he taunted his
noble friend because he h tti:not said that the act in ques-
tion was illegal. Ho (Lord St. Leonards) would say that,
so far as he could be taken as an authority, he was prepared
to say that it was illegal—that in his conscience he believed
it to be Moot —andlto wor.rd prvro it, to be so. Ho would
go at once into the question of legality, with only ono pre-
vious observation on what had been said by the noble
earl with regard to the. expediency of this measure. The
monarchy of this country was hereditary, and the peerage
of this country bad always been called hereditary; it pos.
seesed that quality which enabled noble lords to spring up
from the root which their ancestors had planted, and so
to give solidity and. valise to the character and decisions of
that house which could not be obtained by mere life-
renters of peerages. A. House of Lords 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 whoa 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 do it 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; bat on the law of
dignities, on which subject he was scarcely over right,
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 peCrage for a term of years, because then
it would go to the executors or administrators ; and accord-
ing to that, if a grant *ere 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 ?
He 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 honours, and not of
tne rights to sit and vote in that house • and it was doing
vi donee to his moaning to maintain thati ho was speaking
of the case of life peerages. It was true that Henry VIII.
made two Barons of the Empire Herons 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
Hay the title ot Lord Hay, with precedence next after the
Barons of England, but without a voice or a seat in Parlia-
•
ment; and similar cases occurred in Charles L's time, While
in the Earl of Rutland's case, who was OA son of the Duke
of York, and others of the same kind, a persons so en-
nobled 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 11.,
and that they were legal. Lord Coke had never laid down
any such thing, and hawan the only authority ou which the
arguments in favour of these grants now rested. His re-
ports on these points were nut authorities; and in the case
of the Earl of Shrewsbury, 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, were 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 declared 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 that
a peeress marrying a peer of inferior grade retained her
original rank ; but that opinion had been overruled, and
the practice now was, th tt a duchess, marchioness, or
conetesa, martying a baron, descended to the rank of her
husband. He would run over some of the points upon
which the law of peerage hid 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 decided that no such right
existed. Then it was said that he was entitled by courtesy,
anti that if a commoner married a peeress, and had issue
by her, he would inherit the dignity as well as the es-
tate. This point, too, was 'exabsined into by Henry
VIII., and the commission appointed by that monarch
decided that 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. For 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 a long
time was, that a peer could surrender his nobility to the
Crown. That there had been instances of such surrenders
at vat ions periods of the history of the country was true;
but in the Purbeck case, 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-
scended to several daughters, the oldest' 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 eight existed. Another in-
stance if) which the house had interfered, was when,'
shortly after the union of Seetlend, 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 resolve
that the crown did not possess the right it claimed, and
revived ;4% the negative the question whether the opinion

minister of the crown,;;;Fassuch ho had not hesitated
fur a single moment as to the granting of this patent. The
first authority to which he should refer as warranting him
was that of Lord Coke. As to the authority of Lord Coke,
he would quote a few words from a book which was not a
law book. He alluded to the "Lives of the Chief J ustices,"
by Lord Campbell— (cheers and laughter)—who spoke of
him as "a constitutional person in our history." It was to
him we owed the petition of rights. He said-- "He was
familiar to us as a lawyer. Smart legal practitioners who
are only desirous of making money of their profession,
neglect his works, 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 ho
went on to say that " his opus magnum is his comment on
Lyttleton, which of itself may be said to contain the whose
common law of England." 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
might 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 Coko al-
luded to it. There must be a dozen passages in Lord Coke's
works in which this was said. There wasa passage in his 9th
volume, in which the Lord Chancellor called to his assist-
ance Lord Coke, the Lord Chief Baron, and the qlleetin
- -

was as to the power of the Crown to resume a grant which
had been made of the7Marshalsea. 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 ie fee." Then there was the case of
Lord Abergavenny, 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 ef his body, or
for li!e, then he is ennobled." There were in the library
at Lincoln's-inn the manuscripts copied trom Coke that
were in the possession of Sir Matthew Hale, and who
never said a word on that question, and who therefore
treatedit as matter that admitted of no doubt. Next to
Hale there was Lord Chief Baron Cornyns, who had writ-
ten a digest of the law, and under the head, "dignity,"
said, "4. roan 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 mast be in words to direct the inheritance, else it
endured only to the grants for life. There was another
authority. Justice Doddridgo, a very able judge in the
time of Charles L, 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 " some grants . had been specially re-
strained to the life of the persons to whom the grants had
been made. He referred to the case ef Guiscard de
Denby, who was made 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 lands. It was afterwards discovered that
there was not power to grant the pension out of those
lands, and anothereepatent was issued granting it out
of other lands. That was in the first year of Richard
IL, 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. Cornewegb,
who was made Baron Fauchope for life. Of the 45 grants
of peerages, from the first of Richard 11. to about the
middle o Henry VI., he should say that more than half
of them weee granted accensa prelatorunt procerant et com-
munitatia. Of-the, 45 grants in that period, 11 were for
the life of the partieSe 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—" (tarmac vita
Parris sin duntaxit." Lord Redesdale, speaking of that
case, said that, if Lord Rutland's father 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 400yoars
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 vent a life peerage to a
woman, and a life peerage to ama ? 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
grants to women were made for not very reputable consi-
derations. Now there hail 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 great eminence, had been guilty of a great neglect of duty
in passing 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 ouch a case had happened to fail, it
would havebeon sirap!iciter a grant forlife, because, techni-
cally 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, if
it should happen that there were no such heirs, it would
bo a grant for life only. But indeed ho (the Lord Chea-
pener) 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-
vernment bad a right to complain of the two questions of
legality and.expectiency being mixed up together as they
were in one motion for a reference to the committee of pri-
vileges. 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 not 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 improper exercise 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 in a ease in which no reflections would be
thrown upon the descendants of the person to whom a life
peerage shoul I be given, as if they had been deprived of
the honour on acceunt of their foveae-, and the case of
Lord Wensleydale appeared to be a very fitting one to be
selected. As for the expediency of such au exercise of the
prerogative, there were reasons which made it peculiarly
desirable that high legal functionaries should have readier
access to the Legislature than of late years they had bad.
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, arid 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 au election. That opinion, wrong or
right, was one ahichiweald 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
office, was a distinguished ornament. Well, that made it
the more desirable, that iii the dignataries of the law caul,'
not be admitted into one Haase of Parliament, they should
be in the other. But how was that to be done, unless they
could e cape iu some way the necessity of maintaining an
hereditary peerage ? He knew how it had been done in for-
mer times--ber giving grants of money to them from the
public purse; 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 large pensions or allowances as a
compensation for sinecure 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 Anne, 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
" Barnet'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 bo 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 public opinion, and which would
make such estop as impossible for it as 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 life
peerage sought now to escape would bo at the present time,
if not an uncOnstitutibnal, a most unwise and improper
act, rind 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 preroeativet of the Crown to create
a life peerage, which had ibeen made available at some
-farmer periods for-disreputable and disgraceful objects,
ought not to be exercised in the present :age fur 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 having had any expression of public opinion
on 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 uo right
to inquire into the legality of this patent. Surely it be-
longed to every delioerate assembly to examine the
.qualiflcations 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
such a question should be tried • and although he (Lord
Campbell), sitting in the Court of Queen's Bench, where
he was accustomed to issue a mandamus to require some
other 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
Fernley. 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 seal torn 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 constituticn 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 constitutiou and the law of parliament had
been settled. The. text books of the civil law, at any
rate, contained some passages that might be quoted to
show the effect of desuetude and of a tacitus consensus
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 bilis;
bitant of the place he represented ; but that law, which had
never been expressly changed, had long fallen into disue-
tude. The Crown had also the prerogative, in former
times, of sending write 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 Ciosvn had 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 Gistton and Old scram, Anti o disfren,

chise them at once. But Lord Althorp himself was
obliged on that occasion to disavow the opinion of his own
Solicitor-General, and to declare that, although such pre-
rogative once belonged to the Crown. it had long gone, by
desuetude, and that the change could only be accomplished
now by an act of Parliament, with the sanction of the
King, Lords, and Commons. The noble and learned lord,
who was very indistinctly heard, was understood to pur-
sue much the same line of argument as that used by Lord
St. Leimards, and to state that, in some of the earlier
cases referred to, most of the peerages of that period welt,
created by the authority of Parliament. Ho then examined
some of the cases previously cited and discussed in the
course of the debate, and referring to that of Lady Rivers,
which was decided by Lord Chief Justice Rowe, in the
time of the Commonwealth, said that there was no actual
list of peerages duritie, that period, and if Lady Rivers had
possessed the privilegei of the peerage she would have been
freed from arrest on her application to the court; but the
court thought she was not entitled to be discharged on the
ground of privilege, she being only a peeress for life. But
even if their decision had been different, it would not
have been conclusive that a male person possessing only a
title of honour for life was entitled to sit and vote in the
House of Peers. Baronies by teuures were once created,
and no act of Parliament had taken away the right to cre-
ate such title_; but it could be said that it now existed. 11°
next examined the cases of Lord Hay, in James I.'s time,
and of barons created on the same conditions, that is, not
sitting and voting in the house, in the time of Charles 1.,
and that inthe present case it was true that Lord Wensleye
dale might be a peer, but he was not a peer of Parliament,
and the sooner he got a patent extending his title to the
heirs male of his body the better. (Hoar.) He then alluded.
to Doddridge having been quoted as an authority; 13°
that writer could not be considered as an authority, for he
had gone the length of laying down that any kind of peer-
age alight be created so long as it did not pass to the eV;
caters of the holder of the patent. If that was law, wits'
was to prevent, in the case of a critical division, a Minis;
try that wanted la votes, creating the required number 01
peers for that night ? These had been no case of a peerage
granted to one man for the life of another save in the case
of the eldest son of a peer. The Earl of Shaftesbury, when
Lord Chancellor, had laid it down in the Purbeck case,
that a peerage for life did not entitle a peer to sit in that
house ; and Lord Nottingham, although it would hey°
answered his purpose very well, did not venture to contend
that creations for life did entitle a peer to sit and vote Y;
the house. Mr. Hargreave, in a note upon Coke, Said
that he doubted the prerogative of the Crown to create
peerages for life; for the hereditary principle was the es-
sence of the creation ; and such a right would give the
Crown the power gradually to alter the condition of the
peerage hoe, its present state. There had been no instance
of a peer being ma to a lord of Parliament by virtue of a
life creation. He had the greatest respect for the lower
house ; he had sat there for many years, and had been
amongst those who were most anxious to make it more
popular, and more completely the representative of the
people of this country. But the reform of that house had
been effected in the mode prescribed by the Constitution,
viz., by act of Parliament. If it should be the opinion of
the Government that it was desirable to alter the consti-
tution of the. House of Peers—to, make it more popular,
or by giving life peerages to rause into it a greater
amount of legal knowledge, let it be done 'in the
same way—not by the exercise of the prerogative in.
an exceptional and doubtful firm,' but by the act of
the Legislature. (Hear, hear.) But let them Pro:
ceed upon principle, and not make one portion of
the ho use hereditary, and the other to hold their
rank for life only. He could not give his support to a
measure which would in future limit the hereditarypeer-
age, so far as lawyers were concerned, to the Lord Cnancel-
lor and the Lord Chief Justice. They must have one rule
for all the law lords, and that rule apperred to Min to he
the one which was generally adopted as the principle °f
their lordships' house, viz., the hereditary principle. Jae,
hoped the inquiry moved for by his noble and learned fries
°
would be conceded, and he believed if the committee were
appointed its decieion would be, that their exercise of the
prerogative was, if not illegal, unconstitutional. Whatever
,1
might be the result, however, he trusted they worn
speedily see the learned person whose case had given rise
to this discussion amongst them with such a patent es
should place him in all respects upon a footing of equality
with the other members of their lordships' house. (Hear.)
Eerl GREY rose amidst calls for the division. He con'
eidered it almost unnecessary to add anything to the con-
clusive speech of the noble and learned lord on the
Wool-
sack, and his - noble and learned friend who had just eat
down seemed to feel so strongly convinced of the able
arguments of that speech that he had not ventured to Jai
before their lordships his own opinions in opposition to it.
%
The utmost his noble and learned friend (Lord Campbell)
had ventured to say, as he understood him, was that the
question was open to doubt—that it was a question Off
further inquiry, and did not depend upon the legality
the patent right, whether the peerage was limited or not'
In this his noble and learned friend had only followed the
example of the noble and learned lord opposite (Lord Lend.
burst), who carefully avoided staking his great reputation
on the opinion that the patent was illegal ; and, indeed, h.e
went further, and admitted by inference that it was legs'
With regard to the nature of the measure recommended by
the Government, he had heard with extreme suspicion from
his noble and learned friend (Lord Campbell) that it was I
measure effecting an organic change of the constitution.
the House of Peers even more important than that wh.i°l'
wee effected by the House of Comtuons by the Reform Bill.
But when wore the schedules abolishing a large part of the
heeetlitaaay peerages as now existing and supplying theirplaces with life peerages granted by the Crown ?
was there in this measure affecting the transfer of politics',
power from one class of the community to another, as so'
the case in the Reform Bill ?; A single patent was for con'
ferring a peerage for life in a case where everybody a°
mitted that it could be of no consequence, in regard to the
succession, whether it wore for life or permanently. sire
this a case to be taken up as one likely to lead to an or'
gamic change in the constitution of the house ? The noble
awt learned lord (Lyndhurst) had said that though this
exercise of the prerogative might not be illegal, it, might
be unconstitutional. In that he (Earl Grey) concurred.
There would be no breach of the law if the Crown chose at
any moment to create a hundred peers, but it would be n
violation of the principle of the constitution. In that he
fully concurred, and he saki that if her Majesty should be
a lvised by an undue creation of new life peers to swami)
the House of Lords such an act would be unconstitutional.
But had it been shown that any injury or violation of cons
stitutionat principle ensued from the cautious and prudent
creation c,f such peerages more than from the cautious and
prudent creation of hereditary peerages ? The prerogative
of the Crown was capable of being abused no doubt, but
so also was the power of Parliament, but in what. way the
moderate exercise of the prerogative in the creation of life
peerages could imply injury to the character of that house,
he was at a loss to understand. They were told that peers
who held the dignity only for life would be inferior to tiros°
who eat under the ordinary creation. He thought that
opinion altogether erroneous. Look at the episcopal bench;
were the right rev. prelates who sat there, and whose Peers:
ages were only for life, inferior to the other members 0'
their lordships' house? Was their influence or authority
less than that of the otherpeers; and when Lord Wenaler
dale took his seat eneonest them, would any man venture t°
say that the influence which his high character and great
legal knowledge entitled him to, would be lessened in the,
slightest degree because his patent was for life only
Would any man say that there were not obvious advan;
tages to the country, and to the House of, Lords in Part':
cuter, arising from the moderate creation of new Peel;",.
from time to time ? (Hear.) There were two things the"'
lordships ought to desire—tbe one that there should he
always amongst them a sufficient proportion of those wilt'
raised themselves to the dignity of the peerage by their
own exertions and by the services they had rendered t°
their country. That was essential to the maintenance of
the character of that house with the public. His nobi°
and learned friend (Lord Campbell) assumed that this pro-
posed measure only contemplated the creation of peers for,
life in favour of fltwyere, lie (Earl Grey) hoped it would
not be so limited. Meer,. hear.) He hoped to see the
reward of the peerage conferred for naval services, for wi"
litary services, and for political services in the same
(Hear, hear.) Could any roan doubt that it would be to
the advantage of thti house itself that a gentleman who, in
the other House of Parliament, raised himself to great po'
litical distinction and acquired groat knowledge of the
affairs of the country, should after long service, when he
felt the fatigues of the House of Commons too great for
him, be transferred to the House of Lords ? And was it
desirable that the access of such persons to that house
should be precluded unless they possessed such pecuniary
means as would enable them not only to maintain their rank
in their own persons, but to melee provision for its due
maintenance by their successors ? It might often happen
that such men had sufficient means to support the peerage
during their own livosbut from the extent of their families
were unable to leave to the next in succession that wbich
would be requisite to keep up the dignity afterwards,
surely it would not be desirable to deprive the house of the
benefit of the presence of such' persons. It occurred (re'
quently, no doubt, that heilieary, naval, and other services
to the State were rendered by men who possessed fortunes
sufficient to make provision for a peerage ; and in others
where the Service rendered was of a remarkable character,
Parliament very properly made the necessary proviriou
from the public funds. In such case it was undoubtedly*
right that hereditary'peerages should be granted. Ho coo'
sidered it of great advantage that the titles of Marlborough,
Nelson, and Wellington, should continue to remind the
country of the glorious aoeds for which they were conferred.
But would any man tell hint that peerages might not have
been wisely granted to perspire who had every claim to
them, but for whom the Government felt they could not
ask Parliament to make any pecuniary: pro Vision, and who
had not the means to maintain the dignity of the peerage
themselves? He believed the effect of the measure would
be to open the door of that house more easily to men wheel
it was most desirable should have access to it without
creating a great future evil, by bringing permanently to
that house those who had not the means of upholding the
station of peers of the realm. But it had been urged that
a Minister might at any time abuse this power. 110
believed that to be practically impossible. That house Was
too numerous a body, and too large a proportion of its mem-
bers were independent of the Crown for any abuse of the
prerogative of creating peers to take place. Any Minister
attempting such a step would array against him such a
powerful opposition that he would be sure to lose as many
votes at least as he would gain by the new creation. Ile
believed, therefore, that the security against abuse in the
creation of Life peers would be quite as great as it wits
against the creation of hereditary peers. With reward to
the motion itself, if he were convinced that the legZity of
the patent were more doubtful than he thought it was,
and that the practice of creating life peers was dangerous
, and improper, as had been contended, he should still say
that the course proposed by the noble and learned lord
(Lyndhurst) was not the oue the house ought to adopt. if
the noble and learned lord had asked their lordships to ap-
point a select committee, without expressingany previous
opinion as to the legality of the paten t, and had proposed that
such committee should inquire into the whole subject and
report thereon, he would say that such a motion ought not
to be resisted--(hoar)--and had,Governrnent resisted it, he
(Earl Grey) would not have supported the motion. Con-
sidering that there was doubt as to the legality of the pa-
tent in the minds of those whose opinions were entitled to
weight, and that ethers thought there had been a danger-
ous exercise of the prerogative—considering how generally'
these opinions were entertained, he thought the patent
granted by the Crown to Lord Weneleydale was a subject
which might very properly be inquired into by a select
committee of their lordship house. (Hear.) Such a com-
mittee might inquire, first, whether such a patent was
legal or illegal, and if illegal they might advise their lord •
ships upon the very difficult question of what steps ought
to be taken. (Hear.) Or if the committee should not think
that tho patent was contrary to law, but that j was &dan-
gerous exercise of ,the prerogative, they might advise their
lordships upon the equally difficult question of the course
that ought to be pursued under the circumstances, whether
by legislation or by an address to the Crown. Such &com-
mittee, composed of a small number of those noble lords
well versed in the constitution, would be able, he was con-
vinced, to throw light upon the question and to form the
best judgment as to the course which ought to be pursued.
(Hear.) But that was not the suggestion of the noble and
bawd lad, Tile noble and lewd Ind aged IT's2 the