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

Lord GLENELG submitted be was right in the
course he was adopting, in commenting upon a
document which was about to be laid upon the
table. (Hear.) The difference that existed among
the highest legal authorities proved the necessity
of proceeding with caution, and to obtain all
the advice it was possible to obtain on the sub-
ject. Amongst other authorities that had been re-
ferred to, that of Lord Wensleydale himself had
not been alluded to, and he was therefore justified
in assuming that he was in favour of the exercise of the
prerogative in this instance, or he would not have ac-
cepted a life peerage. The legal authorities in
this house were so nearly balanced that it was
absolutely necessary to call for other advice. (Hear.)
This was not a party question, and the house was now
called on to pronounce a decision which affected the privi-
leges of the Crown. The House of Lords had ever been
the champions of the monarchy and guardians of the
Crown yet now they had prevailed upon themselves
to contest the prerogative of the Crown ; and if they
went into committee to-night they would commit them-
selves to the contest ; and under these circumstances
it was the more necessary that they should arm
themselves before they did so with the highest legal ad-
vice they could obtain on the subject, which, after all,
was a question of law, and not of Parliament. The
noble lord concluded by moving that the opinion of the
judges should he taken on the legality of the patent
granted to Lord Wensleydale.
Lord CAMPBELL complained that his noble friend
should have entered at length into the discussion of the
general question on a simple motion for taking the
opinion of the judges. He had not, however, brought
forward a single argument to- show that the questions
proposed to be submitted to the judges were such as
came within the category of the questions in which
they were the constitutional advisers of the house.
Now he denied that they did come within the category.
They were questions of privilege of which their for
ships were themselves the only proper judges. He
should not enter into all the topics with which the noble
lord dealt, but there was one to vvhici he must allude.
fie hail meet unfeigned respect for the prerogative of
the Crown, but he hoped that he should never again
hear it contended that the house ought not to watch its
exercise, and protest against it when it was improperly
exercised. That house was the constitutional guardian
of the privileges of the peerage, anti if the doctrines ad-
voceted by the noble lord were to prevail, land they
were to submit without opposition to every exercise of
the prerogative, that house would be reduced to the
condition of a Turkish divan or of the R )man senate,
which used to be consulted 'on the taste of a sauce.
Then as to the qtiestions proposed to be submitted to
the judges. There was not the slightest doubt that the
Crown had the power to grant the dignity of a pter ;
there was not any question upon that ; and there was
not the least necessity to summon the judges to dis-
cuss that subject. Bit then came the question az
to whether the Crown had a right to create a legie-
lator—a member of the upper house fit life. And that
question was one of the law of Parliament, and
one which did not fall within the cogn'zince of the
judges. Then the noble lord next proposed to ask what
were the privileges of a peer so created for life. That
was that the judges were to sit down and write a
treatise, setting forth the whole privilegea ot such a peer.
He had the grew eat respect for his learned brethren, but
he should be sorry to see them taken from their proper
duties to write such a treatise. Why, they could not
reasonably be allowed less than seven long years to an-
swer such a question. The real question was whether a
patent fur life to a baron could confer a seat in that
house. That was the question of privilege which that
house could only determine, and upon that he believed
that the judges, following the example set by their pre-
decessors' would refuse to give an opinion. Its solution
depended on the lex et consuetude Parliamenti, upon
which the judges had uniformly refused to give an opi-
nion. In Thorpc's case, in the reign of Henry VI., the
judges were consulted on a question of parlianaentary
privilege, and Chief Justice Fortescue and his brethren
replied that they ought not to answer that question, for
it ha-I not been usual beforetime that the judges should
determine the privileges of that high court of Penis-
ment ; and that the knowledge of that privilege belonged
to the lords of Parliament.

The LORD CEJANCELLOR asked what the Ties-
tion asked was

Lord CAMPBELL said it related to the Speaker of
the Howe of Commons being taken in execution. Then
came another case in the reign of Henry VIII , in which
the question was whether the husband of a peeress of her
own right was entitled to sit in the House of Loris ;
and they then refused to give any Opinion, saying that
such questions had been uniformly decided by the clnsta•
bles and marshals.

The LORD CRANCELLOR asked who put the
question I
Lord CAMPBELL—The King. (Hear, hear.) lie
now came to the authority of Lord Coke, who said that
as every court of justice bath laws and customs for its
direction, some by the common law, and others by par-
ticular law, so it was the lex et consuetude Parliament'
that all weighty matters relating to peers and members
of the louse of Commons should be decided secundum

legem et consuetudinein Parliamenti, and that the judge;
should not presume to give an opinion thereon. This was
a decisive authority, to show that according to the con-
stitutional practice the judges should not be consulted on
ouch a question as that now before them. To a similar
effect were the authorities of Justice Blackstone and
Chief Justice de Grey. Tee proper course to pursue was
that they should at once resolve themselves into a commit-
tee of privileges, and then decide this question. Let the
house just consider the inconvenience of referring the
question to the judges at the very time when they were
just setting out for their circuits. For the sake of Lord
Wensleydale he would ask them in what a condition he
would be placed by such a reference to the judges ? At
present they did not know whether he was a peer or not,
whether he had a right to sit there or in the House of
Commons. Ho trusted that the house would negative the
motion, and that they might now proceed.
The LORD CHANCELLOR felt the difficulty in
which they were placed inconsequence of the judges hav-
ing left, or being about to leave town. But still he felt so
strongly the consequences which might fellow the course
on which the house was now to recklessly hurrying, that
be must urge them not to proceed without taking steps
to obtain the best information and advice in their poser.
His noble and learned friend had commented on the gene-
ral and, as he said, vague manner in which his noble friend
proposed to put these questions to the judges. The ques-
tions put to the judges were often put to them in the ge-
neral words in which the questions on the paper were
framed. The judges on such a reference would tell the
house only the great leading principles inferred by the pa-
tent for life. They would not embarrass themselves or the
house with those minuter points to which his noble friend
had referred. No doubt the object was to guide the house
to come to a safe conclusion as to whether the peer created
by patent for life wasentitled to a surnames to come to that
house. Anil it was said that that was a question which
could only be decided in that house. But would other
points on which the judges might express an opinion
threw no light on this ? Suppose the judges were, form-
stance, to say that a peer so created by patent for life
bad a right to be privileged from arrest, had no right to
be tried by his peers, and had other privileges ordinarily
possessed by peers, would not that create a presumption
that he was also entitled to a writ of summons as a peer
of Parliament,and would it not cast upon the noble lords
opposite the onus of making out by the strongest proof,
the case on which they relied ? He could, however, show
the house a case--not, certainly, one likely to arise—in
which the judge might be forced to give an opinion upon
the main question—whether awhpieceirl
iclrroeavitteldedbtyhaptatiefnat
act,fo
rlitfheew2a4sthenGtiteloe.ditiois.i,tci.n2P6,arliament. There was an
member of the other house became a peer during the re-
cess, and this was certified to the Speaker by two mem-
bers of the House of Commons, the Speaker was required
within a certain time to issue his precept for a new writ.
Now, suppose such a case as this were to arise. Sup-
pose he put it to the judges that A B had received a pa-
tent and writ in the terms of Lord Wensleydales'e, and
that the Speaker, notwithstanding this, did not issue his
I writ, and that he then asked the judges whether the