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

THE SUN, LONDON, FRIDAY EVENING, FEBRUARY 8, 1856.

off every arrear of business in that court. Then there is
another noble and learned lord sitting before me (Lord St.
Leonards), who from his infancyhas been immersed, I may
say, in the law of his country, whe sat as Lord Chancellor
of Ireland with the greatest reputation, and who also held
the office of chancellor of your lordship's house. I ask
where a more competent or efficient tribunal could be
found for the purpose of administering justice ? Most per-
sons think that by adding to the number of judges you add
to the weight and character of the bench. I entertain a
different opinion. I think that in proportion as you ex-
tend the number you lesson the responsibility. I entertain
the utmost possible respect for Baron Wensleydale, but I
may say that he is conversant with the common law of
England, in whichyou want no assistance. He is not con-
versant with the law of Scotland, or with the administra-
tion of justice in the courts of equity. To place him in
this house for the administration of ju.stice must be a mere
pretence tol justify a violation of the constitution of this
house. What is the reason of this change in our system ?
Have we become so enamoured of the system of Govern-
ment of our friends on the other side of the channel that we
Beek to imitate them in the composition of this house?
It is but a few weeks since that I read in the Moniteur
An article coaling from the highest source, denouncing the
Senate of France for want of patriotism,
for
want of
energy, for want of fitness for the destinies to which they
were called. I have no disposition myself to bring down
the character of this house to that life interest upon which
the Senate of France is based. Are your lordships will-
ing, by altering the hereditary character of this house, to
diminish the strong sympathy which it possesses with the
stability of the Constitution and Crown? You will re-
member that the hereditary principle is entwined with
'every part of our constitution. We erijo; the hereditary
principle in this house in common with the Crowe. We
and the Crown mutually support and assist each
other. By the existence of a body of hereditary legis-
lators is formed a barrier to protect the Crown from every
attack upon its hereditary rights. Break in upon that prin-
ciple—destroy that outwork of monarchy —and he must be
a bold man indeed, my lords, who will venture to say that
he can foresee the consequences.- My lords, this question
is one so extensive, it requires so much careful investiga-
tion, that it will scarcely be possible for us, discgssing it
in this house, to examine every part of it with the minute-
ness, attention, and accuracy which the subject requires.
I will propose, therefore, that the cony now upon the table
of these letters patent be referred to the Committee of Pri-
vileges, for their consideration and examination, and for
that committee to report thereon to this house ; and with
that motion I will now conclude. (Great applause.) •
Earl GRANVILLE said he could hardly refra'n from
joining in the cheers which greeted the noble and learned
lord at the end of his remarkable speech, a speaoh that was
remarkable even for him. In following one who enjoyed
such unbounded popularity among their lordships, wh•
possessed such great and various learning, and such an ex-
tensive experience, combined, as he (Earl Granville) was
happy still to see, with a singular degree of vigour, both
in mind and body, he felt himself to be at a great disad-
vantage; and it was only the poverty of the house, or at
least of his side of the question, in the number of law lords
it contained, which obliged him (Earl Granville) to make
this attempt to reply to the noble and learned lord, which
he should have hesitated otherwise to have undertaken, as
he should hesitate to take the command of the Channel

children, and that the lady was created Duchess of Ports-
mouth for life. It can hardly be said that that case made
any alteration in the composition of your lordships' as-
sembly. James the Second was not much distinguished
for his morality, though he gave up his crown for his reli-
gion and he made Catherine Sedley a baroness for life.
William 111. led a regular life, and created no peerages of
that description, nor were any made in the reign of Queen
Anne ; but in the reign of George I. Melusine de Schulen-
berg was created Duchess of Kendal for life, and Melesina
de Schulenberg was also made a peeress for life, but by
what title I unfortunately forget. So we went on till the
reign of George IL, when we find the Countess of Yar-
mouth became a peeress for life. These are not very
'bright colours in our history. It was my duty to refer to
them, but they do not bear on the question before your
lordships. Lady Rivers took a peerage for life, and she was
arrested for debt, and applied to the Court of King's Bench
to discharge her on the question of privilege. The question
was ably argued, but the Lord Chief Justice at last said—
" It is questionable whether a countess, made so by patent
only for her life, be privileged or no; therefore let her re•
main in the custody of the sheriff till Saturday, and not be
turned over to the custody of the mareschall, and then
move it again." It is quite obvious, therefore, that this
case must be left entirelyont of our consideration, and that
it forms no warrant whatever for the case we are consider-
ing. There is another class of cases of this description
where a peerage for life is granted, with remainder to a
second or third son, or some other person. Now that is a
mere form of conveyance; it W. 15 necessary to put in those
to sustain a remainder. In most of the cases to which I
am referring the grant of a peerage for life was to a man
already a member of this house. There are some cases that
do not go so far, because they created not merely au estate
for life, but also in tail, and therefore it does not contro-
vert the proposition I have laid down, that from the time
of Henry VI. to the present time, a period of 400 years,
no commoner has been placed in this house by virtue of a
patent creatinga mere estate ferlife—(hear, hear)—and no
lawyer, no friend to the Constitution, can for a moment
doubt that the instances of this kind occurring before the
formation of our Constitution, when the prerogative itself
was in a state of doubt, never acted upon from that time
to the present, can never be made to justify a patent
breaking in upon the long-established character of your
lordships' house. I come now to a part of the subject
which, from all I have heard, is likely to be pressed upon
the attention of your lordships. I mean the opinion of
Lord Coke. Lord Coke expressly lays it down that the
Crown, by its prerogative, may create a peerage for
life, but I have before stated that the question is not
what the Crown may do by its prerogative. (Hear, hear.)
I was in conversation with a noble friend of mine the
other day, and he said, " The crown by its prerogative
may send for a troop of the guards, may make every one
of them a peer, the peerage deseendible to his posterity."
Would not that be a great violation of the constitution?
And yet it would be as act within the prerogative, and
would be strictly legal. Great reliance is placed upon
Lord Coke, and perhaps snore than he is justly entitled to.
I know that in the reign of James I. a public charge was
made against him that ho had laid down a great deal of
law from his own head and his own authority, without
sufficient vouchers, and I know that on the subject of the
peerage he was by no means infallible. In the very books
in which Lord Coke lays down the law in the manner
which I have stated, that opinion is commented on by a
gentleman of profound learning, the late Mr. Hargrave.
No man was better acquainted with our constitutional

history than the learned gentleman to whom I have re-
ferred. He says in his comment that he does not think
the opinion of Lord Coke can be sustained ; he does not
think that the opinion is established by sufficient autho-
rity. The learned author at. the same time refers to a case

squadron, or to perform any other feat that would indiclte
more of rashness than of courage. Their lordships had all
heard with pleasure, ho was sure, that graceful compli-
ment which was paid by the noble and learned lord to the

to winch lam about to call the attention of your lordships. former members of his own profession, and to thoso mem-
It is a law case, but it is one in a very simple form, and hers of it who were now sitting in their lordships' house.
will 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
dercd his titleto the crown, and the question was whether always the vary best of its members to sit in that
a peer could surrender his title to the crown. It was ar- house. Ho remembered that, some quarter 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 froni that house.
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 ho illustrated the main question country ; and especially their lordship 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 leer of the spiritual peers were to be diminished. (Chsers )
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 Shaftesbnry came house were felt, even strone"er was the feeling that the
to pronounce judgment in the case before him, he, re- noble and leernel lords who belonged to the legal pteues-
forted to the assumption made .by the Attorney-General Ilion were absolutely necessary to it. Not only in the
as to the King's ability to create peerages for life, and evening debates those noble and learned lords were pre-
what was the observation he made? He said, " You sent, to explain what the law was, and to explain what,
had no right to assume that; that question is even more if a bill p &end 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 enormously the eminent
life was not only doubtful, but that it was not in point of members of that profeesion had engaged the esteem and
law to be sustained. There was no man of greater eroi- 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 judereilltit, supported the argument of Sir Wm. Jones, preciated when the highest judicial tribunal was united to
and came to the conclnsion that the surrender was wrong. the authority of that house ! 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 he agreed in opinion with the learned lord who had 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 acquaints,' asith
a case before this house. a case of peerage, on which. Lord law—common law the noble and learned lord seemed to
Plutiket presided, the opinion of Lord Coke was cited. It have excluded from this consideration—but of peers ac-
was a clear, distinct, decided opinion, but it was over- quaintest 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 no reason in support of his house. Now, it had been found difficult to keep up such a
judgment he might, out of deference to him, have cob:- supply of legal lords ; an 1 this difficulty ha I reee ,tedly
tided with him; but as ho had stated the reasons, and been felt by termer governments. A friend, on whose tes-
those reasons had no validity, he felt compelled to decide tiniony he (Earl Granville) could rely, had assured him
against it. Hy lords, I have stated this ease, not to give that he was told by Lord Chatham that Lord Lirerpoore
the ipse dixit of that learned person, bat to show that he government unanimously came, at one perio I, to the con-
took a different view even from that 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
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 to legal right. The question is This, which their lordships might think a piece of hearsay
whether, on certain precedents established four hundred evidence and political gossip, was corroborated Ova letter
years ago, the Crown can at this period, after the contdi- which he would read. He might also mention that in
tatienal framing of both houses, create a peer for life— 1851, under the Administration of Lord J. ltu3.cll, an offer
whether such a proceeding can be considered as justifiable. of a life peerage was made to a dietineuished judge, who
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 throng'n *toted amongst other reasons for refusing that offer, that
it. (Hear, hear.) I shall be followed by some nob!e 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 constitution I
material which I have omitted. I will leave that part and expedient now, he knew the step would be very un-
of the case. Now, my lords, what will be the consul- popular with his legal brethren, and therefore he owned
quenee of the establishment of such a precedent? You that ho had the weakness, as he himself said, to shrink
will find this house divided into two classes, one being from being the first man to set such an example. Now,
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 Pallas, because
of your lordships. No one would willingly encounter 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 Goyernareat were right in think-
ii has been a matter of denunciation ever since. Rut, my ing it legal, expedient, and constitutional, then it was en
lords, if a few men advanced in life can be created peers advantage to have the offer of it accepted by a man so mai-
during the remainder of their short career, how easy will neat in his character and merits, and one so completely
it be on an emergency, with an tinscrupnlous Minister— separate from any political connexion with the Govern-
and,
we have had many such, and may have many more— meut. Now, much was said at the opening of the session
how easy will it be for him to carry any measure by creat- of the doubtful legality of this act ; but the noble and
ing peers for life. It is said that this privilege or pre/vv.- learned lord, who had evidently examined the whole ques- '
tive will be sparingly exercised. My lords, do not give. tion with so much labour, had shrunk entirely from declar-
way to that delusion. It is toe easy a method not to be fug it to be illegal. He had been more than usually clear,
had frequent recourse to. I would give no power that is and doubtless very accurate, in his historicalstatomont ; but
capable of being abused unless where it is necessary for I he had managed with peculiar skill to confuse the legal, the
some very good reason. That I conceive to be good con- constitutional, and the expediency questions together. The
stitntional doctrine. But are there no great authorities noble and learned lord, while evading the question of le-
on this subject? I conceive that I can bring before you a gality, had talked about the constitutionality 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
tain 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 Refo4oe Bill was opposed in lord had brought forward a supposed ease of the Crown
this house, and the difficulty was to overcome that opposi- sending for a regiment of Life Guards, and giving them all
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 proper
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 bean 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 clan- bestow peerages for life. Ho observed that the 'noble and
gerous consequences. and 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 entertained that opinion, but 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 were some such maxims as Nullurn tempus occurrit reyi,
conceive, my 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 years. But
purpose of carrying it, that a great number of peers should the fact was that there had not been ono uniform mode of
bo 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
deal 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
a
e belipeeveerdagtehogrinevNe vaswanitninsrteamnacieniLwe
proceedings, would have agreed to diminish those peerages in the house, namely,
unless ho had thought such a course was requisite ? No ono that skipped a generation, and went to the second son of ia
can say that the influence of government in this house is daughter who never herself enjoyed it at all. Practically
not sufficiently great; 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, Guilts eat dare, ems est disponere. The
species ?f* 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 in the case of the Earl of Devon, admitting the poe.d.
Crown in the translation of 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. lie next took notice of an occasion when Lord
to be tolerated, that they rendered the prelate too subser- Redesdalo .suggested that the holders of certain offices
vient 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, Lora 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 announced amidst the laughter of the house, wore 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 iu 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 *natant in the work, the noble earl read a lung letter of
have themselves been distinguished by similar services ? I Lord Eldon's, which will be found in the biography of that
do not go the length of the old Roman poet, who put into eminent personage, in which Lord El lon had canvassed
the mouth of the Grecian warrior these words : the propriety of bestowing a peerage on the Chief Justice
Nam genus et proceros et slum non fecimus ipsi of the King's Bench, and commented on the pecuniary
Vix ea nostra voco. circumstances of some of the judges who were at that time
Ido not go that length, but 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
for their country, I respect still more those by whom the for their families ; and, amongst ether things, Lord Eldon
great and glorious deeds have been done. (Hear.) It is said, " I mime you that I have often thought, that if I had
said that this is to be confined to members of the profes- survived the acceptance of the peerage but a short time, I
sion 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-
sey, and with perfect confidence, appealing to every man lie." He considered it ono of the most precious privileges
acquainted with the history of this country, that no body which a country possessed, that any man could by his merits
of men have been more distinguished and more successful become a member of that horse • but looking to the view
in their exertions its supporting the liberty and maintain- of the question he had just stateil, he would venture to say
ing the constitution of this country titan those in the pro- that, without making undue reference to the wealth of his
fission of the law. I bear it sometimes whispered that noble and learned friend (Lord Campbell) it was well known
ittah:etirioselredscedniadtain:zent:t so distinguished. I look round that he had enjoyed a large and lucrative practice, that he
gal', and. see near me one of them a nable and gal- was possessed of estates in Ireland. was the master of a
ablest, officers in her foe' personal bravery, one of the house in the aristocratic quarter. of the town, and that his
Majesty's service. I look further, eldest sore had entered into public life; but supposing he
and see a noble baron, always attentive to hie duties in put the converse of that case, and if the circumstances of
this bout°, acute, labo •
.
laborious, rising always to speak with his noble and learned friend had been different, and he had
the et overpoweringescentian ta and
df
r learned commanding
chief eief eloquence, and I find him had only his official salary to live upon, would it not have
Justice. I see another been likely that his son would have been unwilling to sue-
noble lord, holding a distinguished office, which he fills coed to the peerage? and yet it would have been hard
with intelligence and impartiality in the estimation of your upon Sir John Campbell, and hard upon that house, if
lordships. I remember a noble lord, lately at the head of her they heel been deprived of his valuable services. The noble
• Majesty's Government, exclaiming in a moment of excite- and learned lord (Lyndhurst) lied referred in his argument
meat and with great bitterness, "We are over-ridden b to the point of the probable dependence of that housed or.
lawyers in this house." (Laughter.) think:if this nesyr the ministry likely to be creatd by the looking forwaesd
• system were introduced, we should be so
over-ridden that by possessors of life-peerages to here( 'tarptitles. ay,
L the noble lord would hastily take hisitigihnt
ttheinthheounsoertth. if when they weretereeated,and had sufficient fortunes
: It is said that we want judicial strength
discharge the law business. Never was there so unfound:l andri chose to do so, h
But was there no similar. influence y mightin claimeihreraetditwaeryikpeieer'atheast.
a charge. I will say that house never at any moment "
bad more legal strength, more legal knowledge on which to house, was there no baron who wished to be a viscount—
no viscount who desired to be an earl—no earl who desired
rely, than at present. There is my noble and learnediriend to
be
a marquis ? Was there none of their lordships who
on the woolsack, educated in equity, removed to the was not desirous of a step in the peerage ? Was there no
common-law bench, sitting there as a judge, with uni- duke
who would like to have the riband of the Garter, or
versal praise of the profession and the 'Public. Then
there is my noble and learned friend (Lord Brou h 'who would not be displeased if the lord-lieuteAantcy of
g'"uo his county was not given to him, or would any eme say
for four years in the Court of Chan- such fair objects of ambition were not to be tolerated or
that
performed what was considered a most ex- per 'tt I
m' ?As to the creation of two classes of peers, why
cwehry9, parnedsidepd
traordinary Act, by PerocTering industry, until he swept there were already such classes in the case of the Scotch