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protection. Not a day passes in any court of justice, civil or criminal, without one or more parties having the determination of the matter in dispute given adversely. The party or parties in the civil court lose their cause; in the criminal they are sentenced, or, if they prosecuted, they have to bear the acquittal of the defendant. All these disappointed persons may not be so unreasonable as to believe that injustice has been done by the judge; but assuredly a considerable proportion of them are entirely convinced of it. Nothing but the unwillingness of those who conduct newspapers to fill their publications with the complaints of parties, which would indeed exclude every other matter, prevents the daily appearance of attacks upon all the judges. But when there is a case of an interesting kind, or when an able and impressive article is sent, the chances are that it will appear in the papers. No objection can be made to this, provided the reader is made aware of the quarter from which the attack on the judge proceeds. But it is given without any name, and it may very possibly be the work of the party against whom the decision was given, or of his counsel or attorney. The public is deceived, if kept in ignorance of a fact which, when known, would deprive the censure upon the Court of all importance. Requiring the author's name, too, would not prevent fair, entire, and respectful discussion, even by the members of the Profession. That kind of attack would alone be prevented, in which no reputable practitioners could wish to indulge. We throw out these reflections for the consideration of our readers, and of the Profession at large. The only question is respecting newspaper discussion; and the fullest scope, even to anonymous writing, might safely be given in all the other channels through which the public can be addressed.
Art. V.-PEERAGES FOR LIFE.
THE Bill for improving the Appellate Jurisdiction of the
House of Lords, passed by the Upper House, but which, having been referred to a select committee, has been virtually rejected by the House of Commons, has revived public interest in the important constitutional question raised on the creation of Baron Parke a peer for life.
We propose, therefore, by the aid of the materials afforded by the discussions in Parliament and elsewhere, and premising that we do not pretend to any original research on a subject which has been already so much exhausted, to place before our readers a brief summary of the different reasons and arguments which have been advanced either by the supporters or opposers of the prerogative in question.
The arguments on this question have divided themselves into three heads : first, whether the prerogative of creating peers for life be legal; secondly, whether it be constitutional; and, thirdly, is it expedient that, if the alleged right exist, it should be exercised ?
We shall treat of these arguments in their order. And, first, as to the strict legal right to create peers for life. And here it may be desirable to remark on the difference between a strictly legal act of prerogative on the part of the Crown, and that which is also constitutional. Every right which is constitutional must, of necessity, be also legal; but every legal act on the part of the Crown is not also necessarily constitutional. For instance, as observed by Lord Lyndhurst,” “The Sovereign may by his prerogative, if he thinks proper, create a hundred peers with descendible qualities in the course of a day. That would be consistent with the prerogative, and would be strictly legal; but every body must feel, and everybody must know, that such an exercise of the undoubted prerogative of the Crown would be a flagrant violation of the principles of the Constitution. In the same manner the Sovereign might place the great seal in the hands of a person, a layman, wholly unacquainted with the laws of the country. That also would be a flagrant violation of the Constitution of this country.” “Now what is illegal,” says Lord Brougham, “cannot be constitutional; but things may be quite legal, and yet unconstitutional—that is, inconsistent with the principles, and, as it were, the spirit of the Constitution, tending to an infraction of its laws, a raising an obstruction in the way of their execution, a leading to the making of new laws, inconsistent with its nature and fabric."
| The question respecting the power of the Crown to grant a life peerage, entitling its recipient to sit in Parliament, is so important, that we readily insert the following paper containing a sketch of the arguments, pro and con, which have been urged in regard to it; not, however, altogether identifying our own opinion with that which in the following pages is presented.-ED.
Hansard, vol. cxl. p. 265.
The great authority in favour of the legality of the creation of peers for life by the Crown is that of Lord Coke. Lord Coke says:24"And as an estate for life may be gained by marriage, so may the King create either man or woman noble for life, but not for yeares, because then it might goe to executors or administrators. The true division of persons is, that everie man is either of nobilitie, that is, a Lord of Parliament of the Upper House, or under the degree of nobilitie, amongst the Commons; as knights, esquires, citizens and burgesses of the Lower House of Parliament, commonly called the House of Commons; and he that is not of the nobilitie is by intendment of law among the Commons." To this passage there is appended a note, the authorship of which has been the subject of much controversy. As it occurs in Mr. Hargrave's portion of Coke upon Littleton, it has been attributed to him, while, on the other hand, it is contended to be by Mr. Butler, or most probably by neither, but by some anonymous hand. The note is important, because it contains a passage controverting the opinion of Lord Coke. The passage is as follows :-“Notwithstanding Lord Coke's position here of the King's power to make a man or woman noble for life, and his stating in his 9 Rep. 97, 98, the King's power of making an earl for life, and notwithstanding the precedents I have cited above of creation for life, 1 Ilansard, vol. cxl. p. 1195.
2 Co. Litt. 16 b.
I doubt whether the legality of such creations can be supported; I am rather impressed that the quality of being hereditary is of the essence of our peerage, and that attributing to the King a prerogative of creating peers for life only, is to invest the Crown with a power of gradually destroying the peerage in its subsisting state, which I believe is de facto such as not to furnish an instance of a peer sitting as a Lord of Parliament under a life interest. The point seems to me one of great importance. I am not aware that it ever was judicially determined.” It is here important to remark, that it has been contended that Lord Coke merely refers to the grant of the dignity of peer for life, and not to the privilege of sitting in the House of Lords. This view is advocated by Mr. Lewis, in an able paper read by him before the Juridical Society, on the 4th of February, and before the debates on this subject in the House of Lords. This part of the question is so important, that we give Mr. Lewis's reasoning on the subject in his own words :-" It is,"1 observes Mr. Lewis, "undoubtedly important to ascertain clearly, if we can, what Coke's mind was upon the nature of peerages
created by patent. After carefully examining the various passages in his Commentaries, it seems to me that Coke was clearly of opinion that a man cannot be created a Peer of Parliament for life, or otherwise than for an estate of inheritance.
“He first tells us, that previously to 11 Richard II. creations of nobility were by writ, but so that the man called by writ became ennobled to him and his lineal heirs by taking his seat in Parliament, otherwise the writ had no operation. In 11 Richard II., Beauchamp was created noble by letters patent. Coke says that the difference between the two modes or forms of creation is this, that by letters patent a man is ennobled without taking his seat in Parliament. There is no intimation here that letters patent were a form for creating a different kind of peer from that formerly created by writ. On the contrary, Coke tells us, that, if he be created by letters patent, the state of inheritance must be limited by apt words, or else the grant is void.'
1 Papers read before the Juridical Society, vol. i. pp. 159, 160.
“If now we turn to 9 b, we find, 'If he be created by patent, he must of necessity have these words, ‘his heirs,' or 'the heirs male of his body,' or 'the heirs of his body,' &c.; otherwise he hath no inheritance. We cannot infer from these words that a Peer of Parliament may, by letters patent, hold his state of nobility for life only, when we have the express declaration that such a grant is void. Coke is not here treating of what estates may be granted by letters patent, but discussing the difference between the forms of a writ and of letters patent, in relation to the estate of inheritance to be given ; namely, that to give the inheritance by letters patent, there must be apt words.
“The only inference that can be raised from this expression, otherwise he hath no estate of inheritance' (if any must be raised), is that, as held in Sir George Reynel's case (9 Co. 976), regarding a count or earl, in his capacity of having the custody of a county, 'the King may create an earl for life, in tail, or in fee;' and so, perhaps, of nobilities, in relation to precedence, office, or other distinctions, which are properly subjects of creation by patent, and to which a writ has no relation.
“ That no other inference can be raised on the passage at 9 b, appears from a careful reading of the continuation of the passage at 16 b, where Coke observes, 'that nobility may be granted for term of life by act in law;' and 'so may the King create either man or woman noble for life;' the authority for the latter position being Nevil's case. The following words show how Coke regarded these life dignities; for he says, that the TRUE division is, that every man is either of nobility,that is, a Lord of Parliament' (meaning the nobility of inheritance gained by taking a seat under a writ, or by letters patent with words of inheritance), 'or under the degree of nobility, amongst the Commons. This, taken in connection with the opinion that a grant for life is void, shows that Coke considered life titles anomalous, as opposed to the true division; that is, he considered them as giving nobility without making a Lord of Parliament.
'Coke, on the whole, lays down three propositions :“1st. As to words of inheritance. That while a writ with