tution, and almost certain degradation to the peerage. 2. That it is desirable that the country should have the benefit of every description of talent in the House of Lords calculated to ensure the administration of justice in all the various cases brought before it. 3. That the impolicy of multiplying hereditary peerages tends to prevent the Crown from placing in the House persons whose peculiar talents and acquirements would be extremely beneficial to the country. When, therefore, in 1856, the Government of Lord Aberdeen, under the advice of that eminent lawyer Lord Cranworth, then Lord Chancellor, and with the concurrence of such high constitutional authorities as the late Lord Lansdowne and the present Earl Grey, granted a patent of life peerage to the late Lord Wensleydale, in order to secure to the country the great advantage of his long legal experience in the appellate jurisdiction of the House, they had no idea-as they afterwards declared that they were raising any legal or constitutional question. The law, they thought, was clear. And so it was. And the opposition made to the measure was not only utterly unconstitutional, but entirely unwarrantable and inexcusable, and amounted, as Earl Grey showed, to the assumption of an arbitrary power of overriding the Crown, the Commons, and the nation. For there could be no doubt that the House of Commons, representing the country, was in favour of the measure, and therefore, in fact, the House of Lords arbitrarily assumed to override the will of the nation and the prerogative of the Crown. In this instance the prerogative was exercised wisely and beneficially for the good of the people, and the Lords illegally set themselves against both. That the opposition to the measure was merely a party opposition is manifest from the fact that it was led by Lord Lyndhurst and supported only by the Tory party; a and it is not the less true becauseit was supported by Lord Campbell from miserable personal motivesand Lord Brougham. They were both jealous of Lord Cranworth as Chancellor, and of Lord Wensleydale's superior reputation as lawyer. It could not have been conviction which led Lord Campbell to act in the teeth of his own deliberate declaration five years before, that the Crown had the power to create peerages for life. Though, indeed, it is to be observed, that neither of those three noble and learned peers ventured to say that such creations were illegal. Only one law lord ventured to say that, and he was Lord St. Leonard's, an eminent equity lawyer, but not a man with any great knowledge of the common law, and, moreover, not a man of any enlarged mind. He, however, may have been sincere. This is scarcely possible of the others. As Lord Grey showed, they might have addressed the Crown against the exercise of the prerogative, but they had no right to oppose it. And the only pretence for opposition was that it might be abused-which was equally true of hereditary peerages. Had not twelve been created at once in the reign of Queen Anne for party purposes, and had not the House of Lords been often coerced by the prospect of being so swamped? And yet as it was admitted that the prerogative was not abused in the particular instance, but that it was a very worthy creation, there was no pretence for opposing the exercise of the prerogative in this particular case. It is remarkable, as an instance of the absence of historical knowledge on the subject, that no reference was made to the undoubted historical fact that for some centuries the only creations of Parliamentary barons were by writ, and were not hereditary. Lord Lyndhurst, indeed, with crafty sophistry, made an indirect allusion to the subject of writs of summons in a manner studiously calculated to mislead. He said: To peers entitled by descent to sit in this House the writ of summons was sometimes sent and sometimes discontinued." But this was totally untrue. In the only instance in which the Sovereign omitted to issue a writ of summons to a peer entitled to sit as a baron by tenure, patent or descent, the House refused to sit until he was summoned. The cases in which summonses were discontinued were, as Lord Lyndhurst must have known, cases of peerages only created by writ of summons, and so not hereditary. He said, indeed, 'There are cases in which peers have been summoned for a single Parliament,' &c. But he well knew that, as Hallam pointed out, the writ of summons in every case is in terms only for a single Parliament, and that, in fact, they were for centuries, in cases of peerages, only created by writ of summons, renewable for life, and only for life. He sought to explain this away by saying, 'In those times the Crown exercised the power of dispensing with the laws,' &c. Thus representing to the Lords, that the system which had existed, as Hallam shows, for centuries, and even down to our own times, was contrary to law. In vain the authority of Coke, of Selden, of Blackstone, and of Hale was appealed to. In vain the modern precedents of creations of peerages for life with remainder over. No argument, no precedent availed against a party majority. Well did Lord Glenelg say, with caustic sarcasm : There never was such a demolition of legal authority as had been effected by the legal authorities in that House. The only reason why peerages for life had not for some centuries been granted separately was, that these 1 Hansard, vol. cxl. p. 505. peerages had never been granted at all in modern times except to persons who either had estates or were connected with families which had estates sufficient to support an hereditary dignity. But when cases arose of deserving persons who did not happen to be in that position, what was to prevent the Crown exercising its prerogative of granting peerages for life? In this case if Lord Wensleydale had happened to have a cousin with estates fit for the dignity of a peer, and the patent had been to himself for life and then to his cousin and his heirs, there would, it was said, have been no objection, though as regarded Lord Wensleydale the effect would have been precisely the same! Could anything be conceived more absurd than an opposition upon such grounds? Lord Grey moved the following amendment: That the highest legal authorities having concurred in declaring the Crown to possess the power of making peerages for life, and this power having in some cases been exercised in former times, the House of Lords would not be justified in assuming the illegality of the patent, and in refusing upon that assumption to permit him to take his seat as a peer.2 And the noble Earl supported the amendment in a speech of great force, in which he urged that the House would be assuming arbitrary power if-unless it was beyond a doubt that the patent was illegal— they should refuse to give effect to the royal writ of summons. If the prerogative was to be exercised at all, it would be difficult to conceive an instance in which it could have been more usefully exercised than in that of Lord Wensleydale, a retired judge of high reputation and independent fortune. However, what weight, argument, precedent, or authority could pre 2 Ibid. vol. cxl. p. 1179. The House had no authority to come to such a resolution, and it was wholly illegal and unconstitutional. They had no sort of authority to pronounce either upon the patent or the writ of summons; and Lord Campbell admitted that the writ of summons by itself would have conferred a right the House could not resist. The patent was a grant from the Crown, over which they had no authority. This had been laid down by Lord Holt and the Court of Queen's Bench after the Revolution, an authority of which, as Hallam observed: The principle will never be controverted by anyone acquainted with the original constitution of this country.' Nevertheless it was utterly set at nought by the House of Lords on this occasion. The courts of law had declared that a peerage was a legal right, like an estate, and that a grant of it could only be set aside by a legal judgment of a court of law, subject, of course, to an appeal to the House of Lords as a judicial tribunal, but only as an appellate tribunal. The House of Lords had no original power to determine on men's rights, still less to vote them away as a political assembly-by a mere party majority. This view has always been recognised as sound by the highest legal and constitutional authorities. But the House of Lords refused even to consult the judges. They resolved to decide it, and did decide it, by a mere party majority. They pretended to have the right-as a mere political assembly-without reference to any judicial authority, to determine against the royal prerogative and the right of the individual, and they resolved not only that the grant was illegal, but that the writ of summons conveyed no right, consider. which they had no authority to Of course such a resolution carried no authority. The following protest was signed by Lord Cranworth, Earl Granville, the Earl of Harrowby, the Marquis of Lansdowne, the Duke of Argyll, Lord Glenelg, Lord Stanley of Alderley, and others: 1. Because as the order of reference did not direct any enquiry whether a writ of summons would entitle Lord Wensleydale to sit and vote in this House, the Report purports to decide a question not submitted. 2. Because, according to the uniform opinions of the highest legal authorities for about two centuries and a half, the Crown has the prerogative of creating a peer for life, with all the privileges of the hereditary peerage, except that of transmitting his honour to his descendants. 3. Because the creation of a peerage for life, with a limitation in the patent to col lateral relations, has been common even in modern times, and no such patent would have been valid if the prerogative contended for did not exist. 4. Because any subject who has received a writ of summons to this House is en titled to take his seat." It is impossible not to feel the force of this grave and weighty protest, and we deeply lament that the Government did not disregard the resolution and uphold Lord Wensleydale in taking his seat in spite of it, which it was well 1 Middle Ages, c. viii. And see the Banbury case in Lord Raymond's Reports; and in Cruise On Dignities. 2 Hansard, vol. cxl. p. 1218. known he would have been ready to do. The resolution had no binding force at all. All the writers on the subject lay down that the House has no authority to consider a peerage case unless it is referred to it by the Crown, and that even then its opinion is a mere opinion, and has no judicial consequence. The House of Lords can only determine judicially upon appeal, and the proper course to impeach a royal grant is by writ of scire facias, which is carried before all the judges in a Court of Error, and then goes to the House of Lords, not as a political assembly, but as a judicial tribunal, bound to consult the judges, and to determine according to legal anthority. The resolution of the House, therefore, was legally impotent. Nevertheless the Government yielded to it, and gave Lord Wensleydale an hereditary peerage, which was of no manner of use, as he had no heir to inherit it. It seems to have been assumed after this that the question must be settled by legislation, and that the power to create life peers must be conferred by Parliament, and so we see from time to time Life Peerage Bills introduced. This view, however, involves the obvious absurdity that whereas there is no restriction on the creation of hereditary peerages, there is no power to create a peerage 'for life.' Yet the only argument against that power is its liability to abuse. As if every holder of a peerage did not hold it for his life, so far as he is concerned, and as if all the motives that could operate upon him must not operate during his life. In an age of turbulence and force, when a peer was nothing unless he was a great territorial magnate, with hundreds of armed retainers, and strong castles and fortresses to protect himself against an arbitrary sovereign, it was very important that his dignity, like his estates, should be hereditary. The dignity was originally annexed to the estate and went with it. But in our own age, when the fittest persons to be peers may have no estates or land, or small estates and perhaps large families, it is idle to make it a condition of a peerage that it should be hereditary; and, on the other hand, the peer will not be a whit less independent because his heirs are free from a dangerous and cumbrous burden. Besides, we know that in our own times the Crown really exercises its preroga tive at the advice of a Minister responsible to the House of Commons, and still more to public opinion. What reasonable chance is there that it will ever be very seriously abused? On the other hand, the substantial advantages to be secured by its exercise are manifest and numerous. There are men of all professions who are not willing to take hereditary peerages and whose presence in the House of Lords would be of immense advantage. The continual accession of such men would tend to bring it more into accord with the great body of the nation and the other House of Parliament. In a political view this would be of incalculable advantage to the public. With reference to the judicial functions of the House there would be an immense advantage in the addition of half a score of life peers. The present condition of the House as an appellate tribunal is simply a scandal to the profession and a grievous injury to the nation. A few law lords-not one of them an eminent common lawyer, three of them equity lawyers, and the fourth a Scotch law lord-can overrule the unanimous judgment of the fifteen judges of England.' Nay, a majority of one in a 'house' com This point is put with great force by the Lord Chief Justice of England in his able and interesting Letter to the Lord Chancellor on the Judicature Bill. posed of three can do it, and perhaps one of them a Scotch judge, wholly ignorant of English law. The result is that the judgments of the supreme appellate tribunal have less authority than the judgments they overrule, and, of course, the necessary consequence is to unsettle and degrade the law. For such a scandalous state of things there is no remedy but the exercise of the royal prerogative. Life Peerage Bills are proposed session after session in vain. But why should a great prerogative of the Crown, useful and salutary for the public good, be sacrificed to a party majority in the House of Lords? The Government of Lord Aberdeen committed a great error in the course they took. They should not have yielded. They should have upheld Lord Wensleydale in taking his seat, and no opposition which could have been made could possibly have been successful. What ever resolutions the House passed, the Crown should have disregarded them as the Court of King's Bench disregarded the resolution on the Banbury case. It is not too late to take a similar course. We have a bolder Minister than Lord Aberdeen; Lord Granville, who upheld the royal prerogative in a speech of consummate ability, and the Duke of Argyll, who spoke on the subject with unanswerable force, are members of his Cabinet. Let them advise the Crown to grant a life peerage to Sir William Erle or Sir Alexander Cockburn, or any other of the eminent men who would accept it, and they will soon see, let the House of Lords do what it likes, how the country will support the Government and resist any attempts of that House to overrule the prerogative of the Crown and to suppress the rights of the subject. |