Peer," in 1822, had acknowledged it without reserve.1 Butler was the only eminent writer who had expressed any doubt upon the subject.2 The doctrine had also been generally received among statesmen as well as lawyers. Lord Liverpool's administration, impressed with the necessity of improving the appellate jurisdiction of the Lords, had, at one time, unanimously resolved to create life-peers. In 1851, the government of Lord John Russell had offered a life-peerage to Dr. Lushington, the distinguished judge of the Admiralty Court, who, by a late statute, had been de nied the privilege of sitting in the House of Commons. In the Devon peerage case, Lord Brougham had stated from the woolsack, as Chancellor, that the Crown had not only the power of creating a peerage for the life of the grantee himself, but for the life of another person; and upon a more recent occasion, Lord Campbell had laid it down in debate, that the "Crown might create, by its prerogative, a peerage for life, but not a peerage during a man's continuance in office that would require an enactment of the three branches of the legislature." 3 : Relying upon these precedents and authorities, the ministers advised her Majesty, before the meeting of The WensleyParliament in 1856, to issue letters-patent to Sir dale peerage. James Parke, lately an eminent baron of the Court of Exchequer, creating him Baron Wensleydale for life. The letters-patent were issued; but the peers loudly protested against the intrusion of a life-peer to sit amongst the hereditary nobles of the realm. An untimely fit of the gout disabled Lord Wensleydale from presenting himself, with his writ of summons, on the first day of the session; and on the 7th of February Lord Lyndhurst proposed, in a mas terly speech, to refer his exceptional patent to the Committee of Privileges. 1 3d Rep. 37, 38. 2 Coke's Inst., 19th edit., by Hargrave and Butler. 8 Hansard's Debates, June 27th, 1851, 3d Series, cxvii. 1312. Arguments for and against it. Throughout the learned debate which followed, the abstract prerogative of the Crown to create a lifepeerage was scarcely questioned; but it was denied that such a peerage conferred any right to sit in Parliament.. It was treated as a mere title of honor, giving rank and precedence to its possessor, but not a place in an hereditary legislative chamber. The precedents and authorities in support of life-peerages were exposed to a searching criticism, which failed, however, to shake the position that the Crown had, in former times, introduced lifepeers to sit in the House of Lords. But it was admitted on all sides, that no such case had occurred for upwards of four hundred years. Hence arose a most difficult question of constitutional law. Had the ancient prerogative of the Crown been lost by desuetude; or could it be exercised, if the Queen thought fit to revive it? The ministers, relying upon the legal maxim, “nullum tempus occurrit regi,” argued that there could be no loss of prerogative by lapse of time. But their opponents forcibly contended that the Crown could not alter the settled constitution of the realm. In ancient times, before the institutions of the country had been established by law and usage, the Crown had withheld writs of summons from peers who were unquestionably entitled, by inheritance, to sit in Parliament: the Crown had disfranchised ancient boroughs by prerogative; and had enfranchised new boroughs by royal charter. What would now be said of such an exercise of the prerogative? By constitutional usage, having the force of law, the House of Lords had been for centuries a chamber consisting of hereditary councillors of the Crown, while the House of Commons had been elected by the suffrages of legally qualified electors. The Crown could no more change the constitution of the House of Lords by admitting a life-peer to a seat in Parliament, than it could change the representation of the people, by issuing writs to Birkenhead and Staleybridge, or by lowering the franchise of electors. Passing beyond the legal rights of the Crown, the opponents of life-peerages dilated upon the hazardous consequences of admitting this new class of peers. Was it probable that such peerages would be confined to law-lords? If once recognized, would they not be extended to all per sons whom the ministers of the day might think it con venient to obtrude upon the House of Lords? Might not the hereditary peers be suddenly overpowered by creatures of the executive government, not ennobled on account of their public services, or other claims to the favor of the Crown, but appointed as nominees of ministers, and ready to do their bidding? Nay! might not the Crown be hereafter advised to discontinue the grant of hereditary peerages altogether, and gradually change the constitution of the House of Lords from an hereditary assembly, to a dependent senate nominated for life only? Nor were there wanting eloquent reflections upon the future degradation of distinguished men, whose services would be rewarded by life-peerages instead of by those cherished honors, which other men not more worthy than themselves had en joyed the privilege of transmitting to their children. Sitting as an inferior caste, among those whom they could not call their peers, they would have reason to deplore a needless innovation, which had denied them honors to which they were justly entitled. Such were the arguments by which Lord Wensleydale's patent was assailed. They were ably combated Decision of by ministers; and it was even contended that the Lords. without a reference from the Crown, the Lords had no right to adjudicate upon the right of a peer to sit and vote in their House; but, on a division, the patent was referred to the Committee of Privileges by a majority of thirty-three.1 After an inquiry into the precedents, and more learned and ingenious debates, the committee reported, and the House agreed, "that neither the letters-patent, nor the letters-pat1 Content, 138; not content, 105. Hansard's Debates, 3d Ser., cxl. 263. ent with the usual writ of summons issued in pursuance thereof, can entitle the grantee to sit and vote in Parliament." 1 Some hereditary peers, who concurred in this conclusion, may have been animated by the same spirit of jealousy which, in 1711, had led their ancestors to deny the right of the Crown to admit Scottish peers amongst them, and in 1719 had favored a more extensive limitation of the royal prerogative; but with the exception of the Lord Chancellor, - by whose advice the patent had been made out, — all the law-lords of both parties supported the resolution, which has since been generally accepted as a sound exposition of constitutional law. Where institutions are founded upon ancient usage, it is a safe and wholesome doctrine that they shall not be changed, unless by the supreme legislative authority of Parliament. The Crown was forced to submit to the decision of the Lords; and Lord Wensleydale soon afterwards took his seat, under a new patent, as an hereditary peer of the realm. ceedings in relation to But the question of life-peerages was not immediately set Further pro- at rest. A committee of the Lords having been appointed to inquire into the appellate jurisdiction life-peerages. of that House, recommended that her Majesty should be empowered, by statute, to confer life-peerages upon two persons who had served for five years as judges, and that they should sit with the Lord Chancellor as judges of appeal and "deputy speakers." A bill, founded upon this recommendation, was passed by the House of Lords; but after much discussion, it miscarried in the House of Commons.2 In reviewing the rapid growth of the temporal peers sitLords spirit- ting in Parliament, it is impossible not to be struck with the altered proportions which they ual. 1 Hansard's Debates, 3d Ser., cxl. 1152 et seq.; Report of Committee of Privileges; Clark's House of Lords' Cases, v. 958. 2 Hansard's Debates, 3d Ser., cxlii. 780, 899, 1059; Ibid., cxlii. 428, 583, 613 bear to the lords spiritual, as compared with former times Before the suppression of the monasteries by Henry VIII., in 1539, when the abbots and priors sat with the bishops, the lords spiritual actually exceeded the temporal lords in number. First in rank and precedence, superior in attainments, and exercising high trusts and extended influence, they were certainly not inferior, in political weight, to the great nobles with whom they were associated. Even when the abbots and priors had been removed, the bishops alone formed about one third of the House of Lords. But while the temporal lords have been multiplied since that period about eight-fold, the English bishops sitting in Parliament, have only been increased from twenty-one to twentysix, - to whom have been added the four Irish bishops. The ecclesiastical element in our legislature, has thus become relatively inconsiderable and subordinate. Instead of being a third of the House of Lords, as in former times, it now forms less than a fifteenth part of that assembly: nor is it likely to receive any accession of strength. When the pressing demands of the Church obtained from Parliament the constitution of the new bishopric of Manchester, care was taken that not even one spiritual lord should be added to the existing number. The principle of admitting a new bishop to sit in Parliament was, indeed, conceded; but he was allowed that privilege at the expense of the more ancient sees. Except in the case of the sees of Canterbury, York, London, Durham, and Winchester, the bishop last appointed receives no writ of summons from the Crown to sit in Parliament, until another vacancy arises.1 The principle of this temporary exclusion of the junior bishop, though at first exposed to objections on the part of the Church, has since been found to be not without its advantages. It enables a bishop recently inducted, to devote himself without interruption to the labors of his diocese, while it relieves 1 Bishopric of Manchester Act, 10 & 11 Vict. c. 108. See also Debates, 1844, in the House of Lords, on the St. Asaph and Bangor Dioceses' Bill. |