Part 25

These observations of ours have not been made at random. We know that many of the highest and best legal authorities of our time have regarded the uncertain state of the constitution of the last court of appeal with considerable misgivings as to the future, and that they have entertained a deep anxiety as to the possible result, if no definite arrangement should be made. The establishment of a responsible tribunal, such as we have hinted at, would, in any case, have deprived the inventors and advocates of the creation of life-peerages of their only plausible plea; because, as we have already remarked, none of them have ventured to express their unqualified approval of the institution of life-peers, as giving new blood to the Legislature—they merely take their stand upon the judicial advantages which might result from the new method of creation. But if the same advantages, or, as it appears to us, advantages much more important and even precious to the public interest, could be derived from the institution of a new court, framed in accordance and consonance with the legal practice of the realm, and calculated to give universal satisfaction and security, we apprehend that the House of Lords would lose nothing if it renounced what, to the great bulk of its members, is a pure fiction of authority. The pretext—for it is nothing more—for the introduction of life-peerages, has been rested upon a very narrow ground; namely, the necessity of providing for the adequate discharge of the appellate jurisdiction of the House. By consent of Queen, Lords, and Commons, to the erection of an independent and responsible tribunal of appeal, of which the Law Lords of Parliament might be members, the difficulty could be obviated at once; and then—if it should still be proposed to make a radical change in the constitution of the Upper House—the question may be argued upon broad and general grounds. If in any quarter—we care not how high it be—it is deemed advisable, or expedient, or creditable, or conducive to the maintenance of the present constitution of the realm, that life-peerages should hereafter be copiously introduced, let the subject be ventilated and discussed with all imaginable freedom and latitude. But this back-blow—this poor attempt, as we must needs think it to be, of endeavouring to gain a precedent and an example by insidious means, without the co-operation of Parliament—strikes us as peculiarly shabby; and is anything but wise, inasmuch as it indicates a desire to push the prerogative of the Crown beyond the point which has been held as constitutional since the union of the three kingdoms. In a matter such as this is, we need hardly repeat the words of Lord Lyndhurst, that we do not speak of the Sovereign personally, but of the advisers of the Sovereign.

All that we have hitherto said relates to the _expediency_ of creating life-peerages for the purpose of supplying possible deficiencies in the number of Law Lords who now exercise the whole appellate jurisdiction of the House of Peers. But the greater question is behind; and although we approach the subject with considerable diffidence, we are constrained to express our opinion that, in the case of Lord Wensleydale, the prerogative of the Crown has been stretched beyond its proper limit. We do not mean as to the title. The Crown is the fountain of honour; and there seems to be little doubt that the Crown may create titles at pleasure, without any violation of the constitution. The old orders of Thanes and Vavasors may be resuscitated, or new orders of knighthood, with extraordinary rank of precedence, may be formed. All that, and even more than that, lies within the power of the Sovereign. But the institution of a new estate, or a new order, or a new tenure of nobility, which shall have the effect of augmenting or decreasing the power of either of the two other recognised and established estates of the realm, the Lords or the Commons, is an assumption or exercise of power beyond the prerogative of the Crown; and we, who certainly do not lean to the side of democracy, must oppose any such innovation, as strongly and strenuously as we would do were the true privileges of the Crown assailed. We deny not the right of the Queen to bestow honours and titles, and to give rank and precedence; but the case is very different when we find the Queen—or, to speak more accurately and properly, the Queen’s advisers—attempting to alter the recognised hereditary character of one of the legislative chambers.

Let us then consider what is the constitution of the House of Lords. Diligent search has been made for precedents to show that, at an early period of English history, the Crown was in the use of granting peerages for life only; and we are bound to allow that sufficient evidence has been brought to establish the fact that, in the reign of Richard II., at least one peerage of that nature was created. But those who will take the trouble to peruse the elaborate reports upon the dignity of the Peerage, issued in 1820, 1822, and 1825, will find that in those early times the Crown assumed and exercised most arbitrary powers. Peers were summoned or not summoned to Parliament according to the will of the sovereign, and the right to exclude from Parliament a peer who had once taken his seat, was exercised by the Crown in repeated instances. If precedents drawn from the early history of England are to be accepted as rules for interpreting the existing measure of the prerogative of the Crown, we must necessarily conclude that the Crown has the power, without trial or forfeiture, to suspend or take away the privileges of any peer, and that this can be done simply by withholding a writ at the time when Parliament is summoned. We doubt greatly whether even the strongest stickler for prerogative would maintain that such a course would be justifiable at the present day. But in truth we set very little value upon such precedents, beyond what attaches to them as mere antiquarian inquiries; and for this reason, that the ancient usage of England in regard to peerages is of no value in determining the rights, privileges, or position of members of the present House of Lords. It seems to be forgotten that there is now no English House, nor are there any Peers of England. The unions with Scotland and Ireland entirely altered the character of the existing Peerage. To borrow the language of the Third Report upon the Dignity;—

“When the union of England and Scotland was accomplished in the reign of Queen Anne, all the adult peers of the realm of England were entitled to writs of summons in the characters of temporal Lords of the Parliament of England, as that Parliament was then constituted; _but there are now no longer any peers of the realm of England_. By the union with Scotland, England as well as Scotland ceased to be distinct realms; and all the peers of the realm of England, and all the peers of the realm of Scotland, became, by the terms of the Treaty of Union, _peers of the new kingdom of Great Britain_.”

In like manner the union of Great Britain and Ireland produced a change in the character of the Peerage:—

“All the peers of Ireland, and all the Peers of Great Britain, and all the peers of the United Kingdom since created, form, in some degree, the second estate of the realm of the United Kingdom, qualified by the power given to the peers of Ireland to divest themselves of their privileges as such, under certain circumstances; but twenty-eight only of the peers of Ireland are Lords of Parliament, being elected to represent the rest of the peers of Ireland in Parliament, and their election being for life. A power is also reserved to the Crown to create new peers of Ireland, under certain circumstances; and the peers so created become also part of the whole body of peers of the United Kingdom, though not by their creation Lords of Parliament, and though, by the terms of their creation, made peers of Ireland only.

“It seems manifest, therefore, that not only the peers of the realm of the United Kingdom of Great Britain and Ireland at the present day, but all the members of the legislative assemblies of the United Kingdom, both as bodies, and as individual members of different bodies, and in their several different and respective rights and capacities, bear little resemblance to any of the members of the legislative assemblies of the realm of England from the Conquest, before and to the reign of John; and the peers of the realm of the United Kingdom, both as a body and individually, are very different from the peers of the realm of England, before the Union of England and Scotland in the reign of Queen Anne, _and especially as many of them are not Lords of Parliament_; and such of them as are elected to represent the peers of Scotland, and such of them as are elected to represent the peers of Ireland, are Lords of Parliament by election, and not by virtue of their respective dignities, though the possession of those dignities is a necessary qualification to warrant their election.”—_Third Report on the Dignity of the Peerage_, pp. 34, 35.

It is manifest, therefore, that such a question as this, affecting the status and privileges of the Peerage of the United Kingdom, cannot be settled by reference to early English precedents. There is no longer an English peerage, neither is there an English Sovereign. The Acts of Union have quite altered the character of the Peerage, for they have established a clear and intelligible distinction between Peers of the United Kingdom and Lords of Parliament. The mere possession of the dignity by no means implies the right to sit in the House of Lords. With the exception of sixteen who are elected to serve in each Parliament, the whole body of what were the peers of Scotland, but who now are peers of the United Kingdom, are excluded from the House of Lords, unless qualified to sit in virtue of a new patent; and that portion of the Peerage of the United Kingdom whose ancestors were peers of Ireland, are represented in Parliament by twenty-eight of their number. It is important that this distinction should be borne in mind; the more especially because, by a loose and inaccurate mode of expression, many people are led to think that the descendants of the old Scottish and Irish peers are not peers of the United Kingdom. Yet such unquestionably is their character; but though peers of the United Kingdom, they are not necessarily members of the House of Lords.

If, therefore, precedent is to be regarded as affording any rule for ascertaining the extent of the Sovereign’s prerogative, it humbly appears to us that no instance from the history of England previous to the unions with Scotland and Ireland, can be accepted as satisfactory. The laws of England, as a province or component part of the realm, may have remained intact; but the character of the Peerage was entirely altered. The question is not now, What were the powers or extent of the prerogative of the monarchs of England? It is simply this, What are the powers, and what is the prerogative of the Sovereign of the United Kingdom of Great Britain and Ireland? For otherwise, be it observed, the search for precedents must be extended both to Scotland and Ireland, and we apprehend that investigation so directed might lead to some curious results. We know that King James, who succeeded to the throne of England, had such an exalted notion of his prerogative, that in his progress southward he actually tried in person, and condemned to death, an unfortunate footpad, who in all probability would have received a milder sentence from a less august tribunal. As to creations of the peerage in Scotland, take the case of the Barony of Rutherford. That peerage was created by Charles II., in 1661; a much more recent authority than Richard II.; and the destination was to Andrew Rutherford, and the heirs-male of his body, “quibus deficientibus, quamcumque aliam personam seu personas quas sibi quoad vixerit, quinetiam in articulo mortis, ad ei succedendum, ac fore ejus hæredes talliæ et provisionis in eadem dignitate, nominare et designare placuerit, secundum nominationem et designationem manu ejus subscribendam, subque provisionibus restrictionibus et conditionibus a dicto Andrea, pro ejus arbitrio, in dicta designatione experimendis.” In short, if the first Lord Rutherford had no heirs-male, he was entitled by this patent to assign the dignity, even on death-bed, to any person whom he might choose to name; and there was nothing to prevent him, if so disposed, from having nominated his footman to succeed him in the peerage! Here is a precedent to which we respectfully request the attention of those who are bent upon asserting the unlimited nature of the royal prerogative; and we should like to know whether they are prepared to maintain that such a patent, if granted now, would be regarded as constitutional, and would be held sufficient to entitle _the assignee_, not the heir, of the originally created peer to sit in the House of Lords? Certainly we are entitled to demand, if this case of Lord Wensleydale is to be decided upon precedents, a distinct answer to the foregoing question. For, as we have already shown—we trust distinctly, and we know incontrovertibly—the interest now at stake concerns not the Peerage of England, which has long since ceased to exist, but the interest of the Peerage of the United Kingdom; and therefore precedents drawn from the history of England can have no more weight than precedents drawn from the histories or records of Scotland or of Ireland.

We think that no weight whatever is to be given to such precedents. No sovereign of the United Kingdom of Great Britain and Ireland has, till now, attempted to alter the hereditary character of the Peerage. This is the very first instance of a peerage for life granted in the monarchy under which we live, and it cannot be considered otherwise than as an innovation. We use that term in its most innocuous sense; not meaning thereby to challenge the right of the Crown to confer a new description of dignity, but simply marking the fact that the dignity, as granted, is new. But the creation of such a dignity by no means carries with it the right to a seat in the House of Lords. As we have already shown, many of the Peers of the United Kingdom, all of whom are hereditary, are expressly excluded from that House, not by will of the Sovereign alone, but by express statute, bearing the authority of the Three Estates of the realm. If there be any meaning whatever in the phrase that this is a “limited monarchy,” it must be held to signify that the Crown cannot, _ex proprio motu_, interfere with the constitution of the other two Estates. It cannot, we know well, interfere arbitrarily with the constitution of the House of Commons; but is it not an interference with the constitution of the House of Lords, when we find a new kind of peerage created, for the purpose of giving the party so created a voice in the Legislature? Is that not directly contrary to constitutional usage—to the “lex et consuetudo Parliamenti,” which has been justly held as the great bulwark of our national freedom? On this point we invite consideration; and the more deeply it is considered, the stronger, we are assured, will be the conviction that the present attempt, if successful, would be highly dangerous to the liberties of the country.

All must agree with us that it is of the most vital importance that the independence of the two national chambers should be maintained. The House of Commons cannot be otherwise than independent, because it is strictly electoral. All proposals which have hitherto been made to place a certain number of seats at the disposal of ministers, or rather to allow ministers to sit and vote without representing a constituency, have been scouted; and although very plausible arguments have from time to time been advanced to prove the expediency of such an arrangement, these have failed to convince the people of this country that it would be safe to depart, in any case, from the electoral system of return. The House of Peers hitherto has been independent, because, though the Crown has the right of creating new peers, that right has only been exercised according to the existing and understood conditions; and the hereditary constitution of the House renders it impossible to suppose that any undue or exorbitant exercise of the power of the Crown, in creating new peers, can permanently affect its independence. It by no means follows that the successor of the original peer is to be swayed by the same motives which affected his father, or that he will tread implicitly in his footsteps; and therefore, even in times of great excitement, the power of creation has been exercised within limits by the advisers of the Crown. Lord Brougham, who, in the days of the Reform Bill, was not very scrupulous, intended, as he tells us himself, to advise his sovereign, William IV., to exercise his prerogative to an extent which never had been attempted before, and which, we devoutly trust, will never be attempted again. He says, “When I went to Windsor with Lord Grey, I had a list of EIGHTY creations, framed upon the principle of making the least possible permanent addition to our House, and to the aristocracy, by calling up peers’ eldest sons—by choosing men without families—by taking Scotch and Irish peers.” It is of no avail now to revert to the past, or to enter into any discussion whether or not the proposed measure was justifiable; more especially as Lord Brougham adds, “But such was my deep sense of the dreadful consequences of the act, that I much question whether I should not have preferred running the risk of confusion that attended the loss of the bill as it then stood.” Under the present hereditary system, there is little danger that the House of Peers will lose its independent character; nor could it be so affected, even for a short period, save by some such exorbitant exercise of the power of the Crown, by creating simultaneously an undue and unconstitutional number of peers. But the case would be widely different if life-peerages were to be allowed, and recognised as conferring a right to sit in the House of Lords. Peerages in the ordinary course of succession become rapidly extinct. In 1707, when the Union Roll of Scotland was made up, the number of the Peerage amounted to 154; and since then six, having proved their claims, have been added, thus swelling the number to 160. At present there are only 82 members of that Peerage, showing a diminution of nearly _one-half_ in the course of 150 years. If, then, the lapse of hereditary peerages is to be supplied—as no doubt it will be supplied, should the claim of Lord Wensleydale to take his seat in the House of Peers be allowed—by peers created for life only, who can fail to see that, in the course of time, the independence of the Upper House must be entirely extinguished? In the natural course of events, that Chamber must become an appanage of the Crown, very much indeed in the condition of the old English Chamber of Peers, when the Crown exercised its discretion in issuing or withholding writs of summons to Parliament. Therein, we conclude, lies the real danger. We speak of “the constitution of the country,” and men regard the term as vague because so much is implied. But it is different when we consider separately the constitution of each branch of the Legislature. Then we are dealing, not with generalities, but with facts; and we appeal, not only to the antiquarian and the genealogist, but to the understanding of all educated men, whether, until now, they ever conceived the possibility of a non-hereditary House of Lords? Surely, in 1832, when a design for swamping that House was seriously entertained, the legality of creating peerages for life must have occurred to some of the men of acute and daring intellect who were willing to peril so much for the success of their favourite measure, and yet no proposal of the kind was put forward. It is in the “ennoblement of the blood” which, once bestowed, the sovereign cannot recall, that the essential privilege and pre-eminence of the Peerage lies. Take that away, and the whole character of the dignity is altered.

Some kind of argument has been attempted to be drawn in favour of life-peerages, from the patent fact that bishops have seats in the House of Lords. To that we answer that the “Spiritual Lords,” as they are termed, sit there partly by consuetude, and partly by statute; and Blackstone thus explains the reason of their sitting: “These” (_i.e._ the Spiritual Lords) “hold, or are supposed to hold, certain ancient baronies under the Queen; for William the Conqueror thought proper to change the spiritual tenure of frankalmoign, or free alms, under which the bishops held their lands during the Saxon government, into the feodal or Norman tenure by barony, which subjected their estates to all civil charges and assessments, from which they were before exempt; and in right of succession to those baronies which were unalienable from their respective dignities, the bishops and abbots were allowed their seats in the House of Lords.” And let it be specially remarked, that the Crown has no power to call a newly-created bishop, in virtue of his bishopric, to sit in the House of Lords. This is distinctly asserted by the statute 10 and 11 Vict. cap. 108, which provides that the number of English Lords Spiritual shall not be increased by the creation of any new bishopric. So here is a precedent, if precedents are to be sought for, limiting the power of the Crown as to new dignities, and debarring it from interfering with the constituted rights of another estate of the realm.

In the course of this discussion upon a subject not only interesting, but of the highest importance, we have studiously avoided mixing up the question of the right of the Crown to confer titles of honour at pleasure, with that of the exercise of the prerogative to create, contrary to consuetude, a new kind of nobility to sit in the House of Lords. They are indeed totally separate questions, and must so be considered in order to arrive at a proper understanding of the point at issue. We submit that this much is clear and evident—1st, That the right of sitting in the House of Lords is not the necessary consequence of the possession of a British peerage; 2d, That, with the exception of the Bishops or Lords Spiritual, who sit in the character of holders of ancient baronies under the Queen, all the members of the House of Lords are hereditary peers; 3d, That since the union of England and Scotland, which merged the two ancient kingdoms into one monarchy under the name of Great Britain, and made all the existing peers, without any exception, peers of Great Britain, there has been no instance of any attempt on the part of the Crown to create peerages without remainder; 4th, That the same observation applies to the United Kingdom of Great Britain and Ireland, which was established by the Act of Union with Ireland, and which made all existing peers, peers of the United Kingdom.