contended in support of the patent that the Crown had the right to create peers for life, with seats in the House of Lords; and a preliminary objection was taken that the House had no jurisdiction in peerage cases without a reference from the Crown. On the other hand, it was contended that the Crown could not, by such a patent for life only, confer the right to sit and vote in the House of Lords; and that the House had jurisdiction as matter of privilege to see that it was properly constituted, and to exclude disqualified persons. of summons to Parliament issued therewith entitled Lord Wensleydale to take his seat; because, according to a recognised doctrine of peerage law, the receipt of such a writ, followed by a sitting under it in Parlia ment, would constitute a descendible peerage. (a) In answer it was urged that in this case the operation of the writ must be restricted by the words in the accompanying patent showing an intention to create a peerage for life only. In the result the House of Lords resolved that neither the patent, nor the patent with the writ, could confer the right to sit and vote in that House. The right of the Crown to confer the title of baron by patent for life only was not disputed, and was recognised in the resolution of the House permitting James, Baron Wensleydale to appear before the Committee for Privileges. (b) The further question whether other incidents of peerage, such as trial by peers, freedom from arrest, &c., would pass under such a patent did not arise for determination in these proceedings. LETTERS PATENT. It was further contended that, even supposing the patent not to confer the right to sit in the House of Lords, the writ which had been attacked in the House of Commons by the Solicitor-General, Bethell, at the close of the previous session of Parliament, and described as "inferior to the lowest tribunal in what ought to be the accompaniments of a Court of Justice" (Hans., vol. 139, p. 2120; and see the subsequent debate in the Lords, ib., p. 2131). Lord Campbell, Life of Lord Lyndhurst, p. 193, says, "It was notorious that Cranworth and On January 16th, 1856, Letters Patent St. Leonards, who often sat without a third law passed the Great Seal creating the Right lord, frequently differed, and sometimes left the Hon. Sir James Parke, knight, formerly one decision to depend on the maxim præsumitur of the Barons of the Exchequer a peer for pro negante. If Brougham happened to be pre-life under the style of Baron Wensleydale. sent, he was occupied with various matters that interested him more than the appeal. Lord They are as follows:Campbell further states, Life of Lord Brougham, p. 582, "Lord Cranworth, without consulting anyone who could keep him straight, thought it would be his best course to have two new peers who would out vote, if not outweigh, St.Leonards, and make him independent of Brougham," and adds that Dr. Lushington was unwilling "to stand the obloquy of being the first peer for life, but would not mind following in the wake as a second." Nash, Life of Lord Westbury, vol. i., p. 178, says that the offer was made successively to Sir W. Page-Wood (afterwards Lord Hatherley, L.C.), to Mr. Pemberton Leigh (after wards Lord Kingsdown), and to Dr. Lushington. Greville, Memoirs, 3rd series, vol. 2, p. 51, says the question was never brought before the Cabinet. Lord Clarendon and Sir George Lewis knew nothing of it; it was confined to the Chancellor, Granville and Palmerston. Martin, Life of the Prince Consort, vol. 3, p. 438, mentions that "the Prince Consort was represented as chief instigator of the measure, which he was represented to have devised with the ulterior object of introducing men of science, literature, and the arts into the House of Lords." See also Malmesbury, Memoirs of an ex-Minister, vol. 2, p. 41; Correspondence of J. W. Croker, vol. 3, p. 355. The question of life-peerages is discussed by Stubbs," Constitutional History," § 428; by Freeman, "Encyclopædia Brittanica," art. Peerage; May, Constitutional History of England, vol. 1, p. 290 (6th edit.); by Anson, Law and Custom of the Constitution, vol. 1, p. 188, who states, p. 190, that the balance of legal argument was strongly against the claim of the Crown; and by Pike, History of the House of Lords, p. 369, &c. VICTORIA, by the Grace of God of the United Kingdom of Great Britain and Ireland, Queen, Defender of the faith: To all archbishops, dukes, marquesses, earls, viscounts, bishops, barons, knights, provosts, freemen, and whatsoever to whom these presents shall come, all other our officers, ministers, and subjects greeting: Know ye, that we, of our special grace, certain knowledge, and mere motion, have advanced, preferred, and created our right trusty and well-beloved counsellor, Sir James Parke, knight, late one of the Barons of our Court of Exchequer, to the state, degree, dignity, and honour of Baron Wensleydale of Wensleydale, in the North Riding of our county of York, and him the said Sir James Parke, Baron Wensleydale of Wensleydale aforesaid, do by these presents create, advance, and prefer, and we have presents, for us, our heirs and successors, do appointed, given, and granted, and by these appoint, give, and grant unto him the said Sir James Parke the name, state, degree, stile, dignity, title, and honour of Baron Wensleydale of Wensleydale aforesaid; to have and to hold the said name, state, degree, stile, dignity, title, and honour of Baron Wensleydale of Wensley dale aforesaid unto him the said Sir James Parke for and during the term of his natural life: Willing, and by these presents, granting, for us, our heirs and successors, that the said Sir James Parke may bear and have the name, state, degree, stile, dignity, title, and honour of Baron Wensleydale of Wensleydale aforesaid, and that (a) See below, p. 514. Her Majesty's command, and ordered to IN THE HOUSE OF LORDS. FOR PRIVILEGES. Lord LYNDHURST: (b) My lords, the subject I am about to bring under the consideration of your lordships is one of very considerable interest, as it relates to the composition of your lordships' House. The question is, whether the ancient hereditary character of this House is to continue, or whether it is to be broken in upon and new modelled to the extent and according to the discretion and interest of the minister for the time being. he may be called and stiled by the name of Baron Wensleydale of Wensleydale, in the North Riding of our county of York, and that he the said Sir James Parke may in all things be held and deemed Baron Wensleydale of Wensleydale aforesaid, and be treated and MOTION OF REFERENCE TO THE COMMITTEE reputed as a baron, and that he may have, hold, and possess a seat, place, and voice in the parliaments and public assemblies and councils of us, our heirs and successors, within our United Kingdom of Great Britain and Ireland, amongst other barons, as a baron of Parliament and public assemblies and councils, and also that he the said Sir James Parke may enjoy and use, by the name of Baron Wensleydale of Wensleydale aforesaid, all and singular the rights, privileges, pre-eminences, immunities, and advantages to the degree of a baron in all things duly and of right belonging which other barons of this our United Kingdom of Great Britain and Ireland have heretofore honourably and quietly used and enjoyed, or as they do at present use and enjoy: Lastly, we will, and by these presents, for us, our heirs and successors, do grant to the said Sir James Parke, that these our Letters Patent, or the inrolment thereof, shall be sufficient and effectual in the law for the dignifying, investing, and really ennobling him the said Sir James Parke with the title, state, dignity, and honour of Baron Wensleydale of Wensleydale aforesaid, and this without any investiture, rights, ornaments, or ceremonies whatsoever in this behalf due and accustomed, which for some certain reasons, best known to us, we could not in due manner do and perform, any ordinance, use, custom, rite, ceremony, prescription, or provision due or used, or to be had, doue, or performed, in conferring honours of this kind, or any other matter or thing, to the contrary thereof notwithstanding: We will also and by these presents grant to the said Sir James Parke, that he may and shall have these our Letters Patent duly made and sealed under our Great Seal of our United Kingdom of Great Britain and Ireland, without fine or fee, great or small, to be for the same in any manner rendered, done, or paid to us in our hanaper, or elsewhere to our use. In witness whereof, we have caused these our Letters to be made Patent. Witness ourself at Westminster, the sixteenth day of January, in the nineteenth year of our reign. By warrant under the Queen's Sign Manual. C. ROMILLY. A Writ of Summons in the usual form was also addressed to Lord Wensleydale strictly enjoining and commanding him under the faith and allegiance by which he was bound to the Crown to be personally present in Parliament. At the meeting of Parliament on January 31st the Earl of Derby called attention to the creation, and asked that the patent should be laid on the table of the House, in order that its legality might be discussed, if necessary, before the new peer presented himself to take his seat. On February 4th a copy of the patent was presented to the House of Lords by the Lord President, Earl Granville, by My lords, it must not be understood for a moment that there is any personal objection to my learned friend, the late Baron of the Exchequer, in the motion I am now about to bring forward. The objection is, not that he is about to be raised to a place in this House, but that he is to be raised in a different form, and shorn of the usual consequences of a Patent of Peerage. My lords, it is now nearly thirty years since I was first intrusted with the custody of the Great Seal; and one of the earliest acts of my official life was to recommend to the Sovereign this learned gentleman for a seat on the Judicial Bench. The manner in which he has discharged the duties of that high office, his assiduity, his learning, and his impartiality, do more than justify the appointment-they do honour to the selection. My lords, there are circumstances connected with the position of the learned gentleman which add to the importance of this question. He is advanced in life, he is a married man, he has no son, nor (though I say this of course with some hesitation) is there any likelihood that he should have one. It is quite clear, therefore, that whether he has a peerage for life or a peerage in the usual form, practically, as far as any transmission of the dignity is concerned, the result would be precisely the same. The obvious consequence therefore is, and I believe it is not attempted to be denied, that this case is intended to act as a precedent for future occasions, the object being to enable the minister for the time being to place in this (a) Lords' Journ. 1856, Feb. 4th, p. 15. the lead, and now, in his eighty-fourth year, he (b)" We agreed that Lyndhurst should take public life, he had rejoiced at an early opporwas as eager to do so as if, a boy entering on tunity of gaining notoriety. Lyndhurst's speech was the most wonderful ever heard. It would have been admirable for a man of thirty five, and for a man of eighty-four it was miraculous." Life of Lord Campbell, vol. 2. pp. 339-40. House as many tenants for life of the peerage as may suit his interest or his views at any future period in the history of this country. My lords, I must beg leave to protect myself against any misapprehension of what I am about to state. I have received too many instances of the favour of my Sovereign, and I am too grateful for the marks of her favour, to make it possible that I should entertain any other feelings than those of the highest respect for her. It must, therefore, be considered, that in everything which falls from me upon this occasion, I am not speaking of the Sovereign personally, but of the advisers of the Sovereign; and when I am talking of the prerogative of the Crown, and the manner in which the prerogative has been exercised, I must be understood as speaking, not personally of the manner in which it has been exercised by the Sovereign, but of the manner in which she has been advised to exercise it by her responsible servants, according to the constitutional course of proceeding in cases of this description. My lords, it is said,-I hear it repeated over and over again,-that the Crown may by its prerogative legally appoint a peer for life. Even assuming for the sake of argument that to be the case,-but I shall advert to the subject by-and-by more particularly, -it does not follow that this or any other exercise of the prerogative, merely because it is strictly legal, is therefore consistent with the principles of the constitution. The Sovereign may, by his prerogative, if he should think proper, create a hundred peers with descendible qualities in the course of a single day. This would be strictly legal, but everybody must feel and know that such an exercise of the prerogative of the Crown would be a flagrant violation of the principles of the constitution. In the same manner, the Sovereign might, instead of intrusting the Great Seal to a person like my noble and learned friend, (a) distinguished for his legal and other attainments, give it to a lay lord or other person wholly unacquainted with the laws of the country. (b) That also would be a violation of the constitution of this country. Innumerable instances of the same kind might be adduced, but the examples which I have already stated are sufficient to establish the doctrine to which I have adverted. Now, my lords, the position which I (a) Lord Cranworth. (b) Bishop Williams was appointed Lord Keeper of the Great Seal, July 10th, 1621, and presided in the Court of Chancery until October 25th, 1625, when he was succeeded by Lord Keeper Coventry. mean to lay down, and which I can clearly maintain, is this, that no instance has occurred in the history of the country, within the last four hundred years, in which any commoner has been raised to a seat in this House by a Patent of Peerage containing only an estate for life. Every person who has studied the constitution of this country, who is at all conversant with the principles upon which it is founded, must be aware of this, that one of those principles is the obligation resulting from long-continued usage: the lex et consuetudo parliamenti. (a) That is one of the main principles upon which our constitution is founded; and to go back, therefore, for a period of 400 years, and to select three or four or half a dozen instances in which the Crown has performed a particular act by virtue of its prerogative, and that, too, before the constitution was formed, before it was brought into a regular shape, and to make those precedents the foundation for a change in the long-established composition of either House of Parliament, is, I shall contend, directly at variance with the principles of the constitution. My lords, let me look back to the period to which I refer. What extraordinary powers were in those times claimed and exercised by the Crown, and considered as part of its undoubted prerogative! For instance, the Sovereign was in the practice of issuing writs to certain boroughs, desiring them to return members to Parliament. He would issue writs at a subsequent period, omitting some of those boroughs, adding others, and altering, at his discretion, the whole constituent body of the country.(b) There are cases, also, of this description: Peers, entitled beyond all dispute to a seat in this House, and to a deliberative voice among us, have had writs of summons sent to them, and then discontinued, and there has thus been practically a new modelling of the House according to the discretion and will of the monarch for the time being. There are cases, my lords, where peers have been summoned to a single Parliament,-summoned for a single session,-then the summons has been discontinued, and then they have been summoned again. (c) There is a case also of this description, where a peer has been created to have and exercise all the rights of the peerage with the single and remarkable exception of the right of sitting in Parlia (a) See below, pp. 572, 640. (b) Brady, Historical Treatise of Cities and Boroughs, p. 126, &c., ed. 1777. (c) Reports on the Dignity of a Peer, vol. 1, pp. 289-291. Hallam, Middle Ages, vol. 3, pp. 7, 9. ment (a). My lords, at the period to which I refer, the Crown exercised the power of dispensing with the laws of the country. (b) It exercised the right of establishing martial law, at its mere will and pleasure, throughout the kingdom. (c) It exercised the right of issuing commissions for the purpose of levying money under the shape and disguise of loans. (d) It exercised, further, at the period to which I am referring, many other rights of a most extraordinary nature. Some of them have been abolished by Act of Parliament, others have fallen into desuetude; and where any of those privileges have not been exercised for a long period of time, have never, in fact, been exercised since the constitution took its present form, to make use of those precedents for the purpose of altering the composition of either of the two Houses of Parliament, appears to me to be an obvious infringement of the spirit of the constitution. (e) I shall now, my lords, point out to you, and call to your attention, the cases which are cited in support of this exercise of the prerogative. It will not occupy any considerable portion of your time, but it is necessary that your attention should be directed to those cases, for the purpose of coming to a right conclusion upon the important subject which is now under consideration. (a) See below, p. 654-5. (b) Stubbs, Constitutional History, §§ 290, 291, 369. (c) See Manual of Military Law, pp. 5, 9. (d) Stubbs, Constitutional History, §§ 276,373. (e) This subject is further discussed below, pp. 511, 572, 579, 609, 640, 682, 684. Cf. the following passage from the Reports on the Dignity of a Peer, vol. 1, p. 403: "The constitution of the Legislative Assembly as it now stands (1820) apparently depends on usage, and has been by the legislature itself considered as established by usage; and the fact, therefore, of the non-user of a supposed right for a course of ages might give ground for asserting that the right, if it ever existed, had been lost by desuetude;" also the discussion in the Berkeley Peerage claim, 8 H.L. 1, as to peerage by tenure. The influence of custom and usage on the early formation of the common law and constitutional law is discussed in Pollock and Maitland, History of English Law, Bk. 1, c. vi., and Maitland, Introduction to Memoranda de Parliamento, 1305, Rolls Series. See also the authorities in Bac. Abr. tit. Office. The established rules of English law are not abrogated by desuetude. Law can only be altered by Parliament, Co. Litt. 115. In Ashford v. Thornton, 1818, 1 B. & Ald. 405, trial by battle was recognised as legal, though long disused in practice. Lord Eldon, L.C., in introducing the bill for its abolition, stated that such a bill was necessary in England where laws are not abrogated by desuetude, but not in Scotland, June 18th, 1819, Hans. vol. 40, p. 1203. In My lords, the first patent for the creation of a baron was in the reign of Richard the Second; (a) and in the first year of that reign is the first case which is relied on in justification of the present exercise of the prerogative. An earldom was created for life, granted to a foreigner of the name of Guichard D'Angle. (b) That was a dignity for life, and that is cited as a justification of the present measure. He was a foreigner, and could not sit in Parliament, and therefore the grant was altogether nugatory, and it was cancelled in the following year, and an increased pension of 1,000l. a year was granted to him by the Crown, probably as an equivalent for the loss of those honours. (c) That was the nature of the first case which is brought forward to support the present patent. It is quite clear that the individual never sat in Parliament, and had no right to do so, and the case has really no bearing upon the present question. Again, my lords, Robert de Vere, Earl of Oxford, (d) your lordships will recollect, was the favourite of Richard the Second. To that nobleman the Marquisate of Dublin and Dukedom of Ireland were granted for the period of his natural life. But, my Reg. v. Herford, 29 L.J., Q.B. 249, Blackburn, J. said "It is very true that no statute can be abrogated by mere non-user, but when the nonuser has prevailed for many hundred years it affords a very good argument that that which has not been used for so long a time has no existence." See Dwarris on Statutes, p. 529; Erskine, Institute of the Law of Scotland, tit. 1, §§ 43-45; Bell, Dictionary of the Laws of Scotland, art. "Desuetude." The law of the constitution, and especially the legal exercise of the prerogative, may be affected by the growth of conventional or customary, but not strictly legal, rules and understandings; the sanctions by which such rules or understandings are enforced are discussed in Dicey, Law of the Constitution; Anson, Law and Custom of the Constitution; Bagehot, English Constitution. (a) In the 11 Ric. 2. 1387, John Beauchamp of Holt was created Lord Beauchamp of Kidderminster by Letters Patent; "before whom there never was any Baron created by Patent, but by Writ." Co. Litt. 16b. This patent was never acted upon, nor did the Crown again issue Letters Patent purporting to create a person a baron until the 10th September 1441, when Henry the Sixth created Sir Ralph Boteller, Lord Sudeley. Prior to that year, all barons, save Beauchamp and Sir John Cornewall (see below, p. 651), were created by writ, and it was as usual to create barons by writ as by Letters Patent until the accession of the House of Stuart. Note in Macq. (9) Rot. Cart. 1 Ric. 2. No. 29, see below, p. 645. (c) Reports on the Dignity of a Peer, vol. 2, p. 189. He was several times summoned to Parliament, below, p. 558. (d) Rot. Parl. 9 Ric. 2. No. 17, below, p. 646; Stubbs, Constitutional History, § 265. lords, that case cannot be cited as an authority to justify the present measure, because, when these grants were conferred upon Robert de Vere, he was entitled, as Earl of Oxford, to sit in Parliament, and the additional titles which he obtained as Marquis of Dublin and Duke of Ireland did not vary at all the composition of your lordships' House. There was a third case, similar in point of principle, to which the same answer applies,-I allude to the grant of the Dukedom of Aquitaine (a) to the king's uncle, the Duke of Lancaster, but the Duke of Lancaster at that time sat in virtue of that ducal title; and the foreign title of Duke of Aquitaine could not in any way alter the composition of your lordships' House. There is also the instance of the Countess of Norfolk, (b) who was created Duchess of Norfolk for life; but that likewise has no application to this case. My lords, I have thus gone through the reign of Richard the Second, which has been selected as one of the principal periods for the purpose of making out the right to grant a peerage in the form which is now before us. None of those cases apply; but even supposing it were other wise-even supposing that the opinion which some persons entertain upon this subject were a correct one, I would ask your lordships to consider how you can, with any show of reason, refer to the most turbulent period in our annals for the purpose of establishing a precedent of this kind, a precedent as to the extent of the prerogative of the Crown? Why, my lords, the king and the barons were then in a state of perpetual strife and warfare, and we find the king and the barons alternately getting the upper hand. We find the king compelled by the barons to execute a commission transferring all the prerogatives of the Crown to certain persons named in that instrument. (c) We find the learned judges, who were consulted by the Crown as to the validity of that instrument, giving their opinion that the instrument was illegal; and then we find the barons seizing the persons of the judges, executing, without form of trial, the Chief Justice, (d) and banishing the (a) Rot. Parl. 13 Ric. 2., below, p. 648. (b) Rot. Cart. 21 Ric. 2. No. 22, below, p. 649. (c) As to these incidents in the reign of, Richard 2. see Stubbs, Constitutional History, § 266. (d) Chief Justice Tresilian was appealed of treason in Parliament, Rot. Parl. iii. 229; he was condemned and sentenced in his absence. He was subsequently taken, and after being brought up in Parliament and called on to say why the judgment should not be executed he was ordered to be executed forthwith, ib. 238. other judges. Again, my lords, we see the king obtaining a triumph over the barons, the Duke of Gloucester seized, thrown into prison by the king, and murdered there. The barons again getting the upper hand, we find them seizing the person of the king, imprisoning him at Pontefract, and murdering him in that prison. Such is an outline of the history of this reign. Can any just deduction be made from a turbulent period of this description as to what is the extent and proper exercise of the prerogative of the Crown in the age in which we have the happiness to live? My lords, in the following reign, the reign of Henry the Fourth, there is no instance cited in support of this grant. In the reign of Henry the Fifth, in the first flush of his popularity, and in the first year of his reign, he created his brother John Duke of Bedford for life; (a) he created another brother Duke of Gloucester for life; (b) and he is said to have created his cousin Earl of Cambridge for life. The grant to the Earl of Cambridge, (c) if any such grant were made for life, which is very doubtful, fell to the ground, for he was executed in the following year for treason. With respect to the grants to the Duke of Bedford and the Duke of Gloucester, those grants were afterwards surrendered, and grants in the usual form, descendible to the male issue of those persons, were substituted in their room. I believe these are the only cases in that reign which can possibly be cited in support of the present patent. There were cases indeed of this description:-the Earl of Dorset was created for life Duke of Exeter, (d) and the Earl of Warwick is said to have been created, I think, Earl of Albemarle for life. (e) According to the The other judges were impeached by the Commons, ib. 238, and sentenced to death by the ib. 240. They were reprieved, and the sentence Lords Temporal with the assent of the king, was commuted to banishment in Ireland on the intercession of the Queen. See also, Lord Campbell, Lives of the Chief Justices, vol. 1, p. 96; Willis Bund, Trials for Treason, vol 1, p. 12; Stephen, History of the Criminal Law, vol. 2, p. 251. (a) Pat. 2 Hen. 5. p. 1. m. 36, below, p. 650. (b) Pat. 2 Hen. 5. p. 1. m. 36, below p 650. (c) Rot. Parl. 2 Hen. 5. p. 1. m. 8, below, p. 650. The entry on this roll appears to be the only record of the creation of the Earl of Cambridge, and it merely records his investiture as an earl in full Parliament. No charter or letters patent appear to have passed on the occasion. Note in Macq. See also Complete Peerage, vol. 2., p. 120n. (d) Rot. Parl. 4 Hen. 5. m. 11, below, p. 651. (e) Dugdale, Baronage, vol. 1. p. 245. No record of this grant is extant, nor is any authority referred to by Dugdale. Note in Macq., see below, p, 538. |