Star.
London, England, 1830-05-14 00:00:00

THE BERKELEY PEERAGE.

COMMITTEE OF PRIVILEGES, HOUSE OF LORDS,
WEDNESDAY, MAY IX.
This case was opened before a Committee of Privileges
hi the lase Session by Mr. Fonblanque, and evidence in
support of the claim was produced, when the further
coietideration of it was adjourned until this day.
Mr. Fox nt..t NQUE observed, that since he bad opened
the case, Sir John Shelley Sidney had put in a claim to
the title of Berkeley, and laid a printed statement before
the house, which was calculated to make an unfavoura-
ble impression on their Lordships respecting the claim of
Col. Berkeley. lie (Mr. Fonblanque) therefore wished
to make a few observations to the house on that state-
ment, with a view to remove any prejudice which it might
freak. against Col. Berkeley's claim.
The Earl of Er nos wished to know if it was meant
to be argued that Col. Berkeley was entitled to the dig-
duty in question, by virtue of his being the proprietor of
curtain estates in fee, and if so, whether it was as pos-
Reeser of those estates in law or in equity ?
Mr. FON BLANQUE replied, that he claimed the title
as tenant for life of Berkeley-castle, subject to an out-
standing lease.
Lord ELDON—Do you mean tenant for life of a legal
estate ?
Mr. Fox RL itiQUE replied in the affirmative.
The Earl of ELDON wished to know whether the lease-
holder in possession of the estate, or the person having
the legal freehold of the estate, was entitled to the dig-
nity ?
Mr. Fox BLANQUE—In the Abergavenny case it was
decided that the tenant for life in possession was entitled
to the dignity.
The Earl of ELDON—Then, if I were tenant for life,
in possession, having the legal estate, should I be a peer,
though another might, at the same time, have the estate
in equity ?
Mr. Fon BLANQUE admitted that there was some dif-
ficulty in answering that question.
The Earl of ELDON.—Suppose Col. Berkeley should
succeed in establishing his claim in this instance, and
should afterwards transfer his estate to me, should I be a
peer or should both of us be peers ?
Mr. Fox BLANQUE.—I apprehend that the person in
possession of the estate would be the peer.
Earl of alio); .—Suppose what is possible, though not
very probable, that Colonel Berkeley, after obtaining the
peerage, should become insolvent, and apply for relief
from his embarrassments to the Insolvent Debtors' Court,
where he should surrender his property to assignees,
should these assignees be peers ?
Mr. Fox BLANQUE observed, that no doubt there was
a difficulty attending the case, but the question for their
lordships was, whether the right here set forth existed :
if so, it was their duty to establish it without adverting to
the consequences. If it was a question of expediency, it
would be otherwise ; but it was one of abstract law—
namely, whether this right attached to the possession of
Berkeley castle or not ? The learned counsel then ad-
dressed the committee respecting the statement laid on the
table by Sir John Shelly Sidney, which represented the
Berkeley peerage as a barony in fee, descendible to the
heirs general, and Sir John Sidney claiming the title as
the heir of the Countess of Warwick, daughter of Thomas
Lord Berkeley, who died in the reign of Henry V. The
purport of the learned counsel's address was to show that
this was not a barony in fee, and that the assertions made
in that statement respecting the points discussed in the
Abergavently peerage case, were not correct. When the
learned counsel had finished his *hese,
Mr. Fanshaw was called, tille prdattpe4 a., tiscript
from the Cotton Collection of manuscriPts-in the British
Museum, with a view to prove the pedigree of Richard,
Earl of Warwick, through whose lady Sir John Sidney
preferred his claim.
The LORD CHANCELLOR and the Earl of ELDON ob-
jected to it as inadmissible evidence. There was no tes-
timony of its ever having been in the possession of the
family of Col. Berkeley.
Mr. BROUG 11 A af, in support of its admissibility, cited
the case of " Petton v. Walter," 1 Strange, 160, where
a manuscript found in the Harleian Collection was ad-
mitted in evidence. On referring to that case, it appear-
ed that there had been a commission issued from the He-
rald's Office to inquire into the correctness of the pedi-
grees set forth in the Harleian manuscript, and that the
pedigrees had been signed by the heads of the families to
whom they related.
This led to some discussion, in which the Attorney-
General, Lord Holland, the Lord Chancellor, the Earl of
Eldon, and Mr. Brougbam, took a part, and which termi-
nated in rejecting the proposed evidence.
Mr. BitouG it AM then addressed the committee on the
evidence produced in the last session. He would un-
dertake to show that some of those absurdities and ridi-
culous consequences which the noble and learned lord
(Eldon) had by way of a reductio ad absurdum, pointed
out to result from the establishment of a barony by te-
nure, had existence and were admitted in the constitu-
tional laws of this country. If it should be found that
more absurd consequences existed in the claim of barony
by tenure than in the constitution of both houses of Par-
liament, he (Mr. Brougham) would give up his case. He
would satisfy the house that a barony by tenure was not
obselete, and there was no warranty in law for saying
that if it once existed, it could no longer exist. There
was no question but that such a thing as a barony by te-
nure did once exist, and that it was by right of tenure
that persons were annually entitled to a seat in the legis-
lature. That all honours were originally connected with
land was not denied by any authority. That this was
succeeded by personal honours, all authors agreed, but
there was a difference of opinion respecting tho time and
the degree of the change. The question now was, whe-
ther honours by tenure were obsolete. If once admitted
to exist, the onus of proving that it ceased should rest
with those who denied its existence. The learned coun-
sel then proceeded to say, that the majority of dignities
granted by the Crown were personal after the extinction
oldie uld land baronies, and in some places a personal
title was annexed to a title by tenure. He then pro-
ceeded to cite authorities in support of his view of the
question. The first he would cite was that of Sir Mat-
thew Hale, which in constitutional law was emphatically
high. In the manuscripts of that high authority were
found the words as set forth in the 16th note of Har-
grave's Coke upon Lyttleton,—" It was adjudged in
Parliament, Lord Gray's case, which was a barony by
writ,and there agreed,that where Lord Grey, being baron by
writ, is created Earl of Kent, to him and his heirs male
of his body,—and he has issue two sons by several ven-
ters, and the eldest has issue a daughter,—the barony
shall go to the daughter, and the earldom to the younger
• brother, and doth not draw the barony to it. But if it was
a feudal title of honour, as the Earl of Arundel or ba-
rony of Berkeley, there possessio fratris should hold
well, because the title is annexed to the land." Could
any authority be higher or more directly in point than
this? observed the learned counsel: one historian had
set forth that all honours were personal since the reign
of King fin ; another (an aoonymobs writer, cited by
Camden) stated, that all honours were personal since the

reign of Henry 111. and 3d. that honours were personal
since the reign of Edward I. all assert with an equal
degree of confidence. Yet, Sir Matthew Hale had shown,
that there were baronies by tenure, subsequently to all
the periods above stated. Lord Chief Baron Comyn,
another great authority, to whose opinion much importance
is attached, had set forth in his Digest, title Dignity, c.
2.—" That there may be a barony by tenure, and such
barony goes with the land, to heirs male or otherwise, as
laud is limited." Thus, observed the learned counsel, we
have that great authority for stating, that a barony might
go to the connusee of a fine, or the purchaser under a
will. The learned counsel then proceeded to state the
points which had been under consideration in the Aber-
gavenny peerage, which, he observed, was decided on the
principle contended for in this case. He then took a
comprehensive and learned view of the right by which
the ancestors of the present claimant had taken their
seats in that house. He then alluded to the Arundel
peerage, which was also a barony by tenure, and was so
decided in the reign of Charles I. by the Judges of the
land to whom the case had been referred, whose decision
was subsequently confirmed by an act of the legislature.
The learned counsel then referred to the absurd conse-
quences which the Earl of Eldon had pointed out as the
result of the establishment of this claim, with a view to
show that consequences equally as ridiculous might at-
tend the modern mode of granting dignities. It was
very possible, and not very improbable, observed the
learned counsel, that the eldest son of a peer might be a
knave or a fool, yet such a son would, by the constitu-
tion of this country, sit in that house after the death of
his father, and be a judge, in the last resort of the rights
of property,—nay, of the life or death of his fellow-sub-
jects, and it was impossible to prevent him from exer-
cising the duties of a supreme judge, unless he was con-
victed of felony, or found to be insane by a jury. He
would ask their lordships if this was less absurd than that
the assignee to whom the Insolvent Debtors' Court should
give the barony, if he were an honest man, should sit in
that house ; or that the purchaser of the estate which
conveyed the title with it should sit in that house ? Did
not the law allow persons to purchase the right of voting
at elections ? and he saw no difference in principle be-
tween purchasing the right of election, and the right to
sit in the House of Commons; for a person might pur-
chase the borough of Old Sarum, and then return himself
to Parliament. (Laughter.) Was there any thing more
ridiculous in this than in a barony by tenure ? In the
observations which he made respecting the peerage, he
did not mean to disparage that body : he merely pointed
out the consequences which might result from general
rules ; but these consequences were no argument against
the expediency of them. The absurdities which might be
deduced from our constitution and laws were no proof of
the non-existence of these laws. In like manner, the
absurdities consequent to a barony by tenure were no
proof of the non-existence of such a barony. The learned '
counsel having spoken from half-past eleven until near
four o'clock, was interrupted before he concluded by the
committee, adjourning the further consideration until a
future day not named.