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

louse to refer the patent to a earemitLee of privileges in
terms that actually prejutiged tun whole question. (Hear.)
`Thus it should be remembered that a committee of privi-
leges was a committee of till whole house, and there was
. _

no greater opportunity afforis-d in such a committee for
deliberation than in the bons.: itself. in a committee of

,privileges discussion would be impossible. The noble lord
:TV2*.io advocated that courss no doubt had resolutior a pre-
*tired. 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
%spect 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 had 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
e 0 tutnittee 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 the patent the house would be
ground 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-
"de. The house might refuse, and the claim be carried
to the courts of law, and be there decided is the affirma-
ivp. Would not the house then be in collision with the

Judges of the land ? Or if it went to the House of Corn-
ation%, would it be prudent for their lordships' house to
Place itself in collision at once with the Crown and the

Pother House of Parliament? He advised the house before
thy took any steps that might lead to serionsconsequences
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 werages, or as to
whether Government had chosen the proper moment for
raising the question, but this he did sly, 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
oble earl), exhausted as the subject has been, and ex-
hausted as your lordships are at this late hour (half-past
1?), I shall not attempt to occupy your lordships at

any great length, :,s I am sure I c;-11 add nothing to the

arguments which have been urged. Bat I could not iecon-

dile it t ) 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 hoar.) My lords,
I Cannot reconcile 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.)
cannot, my lords, permit myself to remain silent, feeling

84 1 do a deep interest in the question, having myself the
honour of being the 14th representative of an hereditary
_ _

earldom in this house—of a family which for 400 years has
11 hereditary succession had representatives in Parliament,
*when I find that the privileges of this house are attacked by
all exercise of the prerogative for which the faintest shadow
Si a precedent mu3t be sought for at a period antecedent
io that at which the earliest of my ancestor,: had the honour

Cif 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.
Itet the prerogative, being the power of doing that which is
tot contrary to, or not forbidden by, or is beside the law,
that is a power not vested in the person who wears the
town, 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 irresponsibility of the advisers

of the Crown. (Hear.) Therefore on every ground we
`are bound to see that the prerogative not only is net car-
tied to an illegal but to an unconstitutional extent. (Hear.)
tut, 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-
thanes prevent your lordships from discussing the question.
The noble lord says, paying a deserved coLspliment to the
'abilities and learning of Baron Parke, that he thought this
most favourable opportunity for trying the question.
For trying what question ? The question of the power of
the Crown to grant a patent of peerage limited to life?
slow is it to be tried ? When your lordships propose to
Proceed to try it the noble and learned lord turns round
t',Pon you, and says, you have nothing to do with the ques-
tion, and cannot try it--(hear) —that you cannot deal with
-that you cannot even inquire into it ! (Hear, hear.)
',.,-I:hat argument has been repeated by the noble earl (Earl
'reY) 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 the writ of summons alone,
Would your lordships (he asked) dispute the right of the
,Down to issue summons ? Why, no, my lords. We admit
re power of the Crown to issue such a writ. (Rear.) But
se 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 sat during his life, and
when his daughter's son claims the succession. Then we
are to argue the question whether the learned baron should
e'v'er have been allowed to sit at all ? That certainly would
..e a strange mode of proceeding. (Hear, hear.) My lords,
rather adopt the argument of the Lord Chief Justice of
the Queen's Bench : that if the patent had never been
Placed before us there would have been a clear right in the
Crown to summons the learned baron to this house.
Lord BROUGHAM—That would have operated as a
creation of an hereditary peerage.
The Earl of DERBY— It has been held at all times that
canneoning a person to this house creates a peerage with
inheritance_ But when the learned baron appears at the
tanle 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 wo say is unconstitutional. Then
*hat 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 hold our peace. (Hear, hear.) But, my
lords, of all the extraordinary arguments ever urged, the
Most extraordinary is that which has been urged to-night
17 the noble earl (Earl Grey), who says—differing alto-
igether from the noble and learned lord on the woolsack,
''ho 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-
ships 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-
leges " 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 meaty arguments may be urged
against peerages for life. I think the Government have
,Cot taken the most convenient mode of raising the clues-
ion ; but do not refer it to the committee of privileges,
conveying a preconceived impression that the patent is not
Irat& Such 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-
dazing its illegality. My lords, of the two courses I think
You have taken the more moderate course • because, cer-
tainly, if you were to declare the patent illegal, and that
Ureter it Baron Parke would have no right to take his
aeat, the noble atd learned lord would have denounced it
ss u'inonstroua 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
counsel, bringing to bear on it the highest degree of
legal learning, and sifting the subject thoroughly, before
this house pronounces a decision upon it. But the noble
earl (Earl Grey) having, to ray 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 noble lord moving the committee
Would regularly have the right of nomivating it, such a
conrse would scarcely be so respectful to the Crown
and certainly not so much in accordance with precedent
and authority as that which is now proposed, to refer it to
the committee of privileges. There have been analogous
cases in which reference has been made to the committee
of privileges. In the reign of Charles 1., in the year 1627,
,1% Patent of precedence was given to a certain earl, and this
coils° refused to acknowledge it, and referred it to a corn-
Mittee of privileges. We have here a patent which we be-
lieve to be unconstitutional ; we do not call upon your
lordships at once to pronounce 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 been adduced, I have come clearly to the conclusion
that if there be one case, there certainly is not more than
One, in which the Crown has granted a peerage for life, to
;), party who has ever ever sat and voted in this house, uti-
Liss the patent had the previous assent of Parliament. And,
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
finch precedents very consonant with the spirit or the prin-
ciples of a Whig Administration. (Hear, hear.) If, my
lords, we are dealing with a question of a prerogative of
She Crown, 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, my
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-
etitutional 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
tenure of laud, 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 privi-
lege; and the indifference felt by the barons with respect
to receiving the writ renders any precedents which may ho
• drawn from their times unworthy of practical considera-
tion in dealing with the question under your lordships'
notice. But, in after times, 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 in the body of the writ, the fact of sitting 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-
• raster of the inheritance; but, I believe, that in every
instance in which a patentee) operated it did not proceed
from the Crown alone, but from 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 vanture to
• deny In the celebrated case of the peerage of the Duke
of Cornwall, which was settled in a manner opposed to