Page images

limiting the peerage, so that it is doubtful whether the patents were not void, or at least whether an hereditary peerage was not intended. The turbulent period when many of these peerages were created, the scenes of violence which then ensued, the violation of all law and order which then prevailed, are also much relied on. The great and leading objection to these precedents, however, is that of desuetude. Three or four hundred years have now elapsed since these creations took place, and even then they were not common or frequent. If precedents so old, exhumed from periods so ancient, are to be recognized as of any validity, where must the limit be fixed? In those days, it is said, the husband of a peeress in her own right was entitled to the peerage during their joint lives. A man might be tenant by the curtesy of his wife's dignity. Again, a peer might alienate his peerage with the consent of the Crown, and could surrender it to the Crown. "Upon a descent to females, it was formerly considered that the eldest was entitled, and that the Crown could confer the right on the husband, if any. It is now settled that the dignity is in abeyance. The power to determine the abeyance is in the Crown, but it can only be exercised in favour of one of the co-heirs. Formerly it was held that the King might degrade a peer for poverty; but it has long been settled that this can only be done by Parliament. Coke lays it down expressly, that if a duchess marries a baron, she remains a duchess, and loses not her name, because her husband is noble; yet other authorities were opposed to this view; and upon the coronation of George III., the Duchess Dowager of Leeds, who had married Lord Poltimore, was not allowed to rank as a duchess."

"The doctrine of desuetude," observes Lord Campbell, "has unquestionably been acted upon in England with respect to the other branch of the Legislature. Formerly no one could be returned as a member of the House of Commons who was not an inhabitant of the place he represented. There has been no written law to alter this usage, yet now any British subject may be returned by any constituency within the United Kingdom; so, by usage, the rights of voting in different boroughs, formerly nearly uniform, became infinitely diversified. Not only in the

Plantagenet reigns, but in the time of the Tudors, the Sovereign was in the habit of creating new constituencies, and adding at pleasure to the members of the House of Commons. Nay, more; when he had once enfranchised a borough, with power to send representatives to Parliament, at his pleasure he ceased to issue a writ to that borough, on summoning a new Parliament, and so, by his prerogative, the borough was disfranchised." A remarkable instance of prerogative exercised in former times is contained in a note to Lord Campbell's published speech :-"In the reign of Henry VIII., that sovereign, in a writ to the sheriff for the election of a new member of the House of Commons, says, 'We think, for the discretion and experience which we know to be in our well-beloved servant Anthony Deny, of our private chamber, that he is a man meet and fit to be chosen. We will, therefore, and require you, that, proceeding to the election of a new burgess of our said Parliament, ye elect and choose our said servant Anthony Deny, and so to admit him to the same, with the wages and fees thereunto belonging and appertaining.""

"After," said Lord Brougham, "the great Charter had been once and again confirmed, and when the government might be supposed to have settled into somewhat of a more regular form, we find no less a sovereign and lawgiver than Edward I., our English Justinian, as he has been so generally termed, sending a commissioner by his own mere authority, one John de Kirby, round to all the cities and towns of the realm, to explain to the people the royal wishes. What he was sent for appears next year, when more money was wanted; for a Parliament was then holden at Shrewsbury, and grants obtained, and all the monies which Kirby had collected were deducted from the levies now legally imposed." "Observe," again remarks Lord Brougham, "how little the Crown regarded the rights, the uncontested rights, of Parliament itself. We have all heard of the Lacklearning Parliament,-the Parliamentum indoctum, as it was more learnedly called, just as we may have heard of a Parliamentum supradoctum, or perdoctum, in later times, from the great copia peritorum which it has exhibited. That of Henry IV., in 1404, was summoned by writ, which the King issued without


any authority whatever, commanding that no man of the law should be chosen knight of the shire. This illegal command was obeyed, and the consequence was, that no lawyer sat, the boroughs having apparently taken the hint from the counties; and Lord Coke, as we all know, observes on this Parliament, that never a good law was made thereat.' But though no one can show any statute depriving the Crown of the right thus to control elections, yet no one will now maintain that such a prerogative is vested in it, or ever was, by law." Again: "It was," remarked Lord Brougham, "the constant practice of the prerogative actually to alter the statutes passed during the session, by directions of the Sovereign, by orders in Council, and without either the previous authority of the two Houses themselves, or their subsequent confirmation of the changes made. The alterations were usually by the Privy Council, at the time of proclaiming the Act."

These are certainly strong arguments. It may be remarked, however, that with reference to the various acts of prerogative to which we have just alluded, they have either been held not to exist any longer, or to have never existed, or they have fallen into disuse, and become virtually extinguished through some opposite usage or practice inconsistent therewith. There has been a kind of adverse possession, if we may venture to use the expression. Now, with reference to the right of the Crown to make peers for life, the same argument does not hold, or, at least, to the same extent. By the exercise of this prerogative, no usage or custom already existing is directly affected, neither the rights of peer or commoner are interfered with, except, at least, in quite an incidental manner.

The cases where there has been a creation for life, with remainder over, have been relied on on one side as supporting the alleged prerogative; but it is contended that these creations are in their nature hereditary.

The Scotch and Irish peers, and the bishops, are also made to fill up their part in the present discussion. It is said, however, that the peers for Scotland and Ireland sit by virtue of special provisions made on the union of the respective countries, and that with reference to the bishops, they formerly sat in right of

2 R

VOL. I. NO. 11.

certain baronies annexed to their benefices, and that they now sit in the House of Peers as a separate branch of the Legislature virtute officii.

The circumstance that peerages for life have frequently, and more recently, been conferred on ladies has been also relied on by the supporters of the prerogative. It is contended, however, that as ladies cannot sit and vote in the House of Lords, a mere dignity was necessarily only conferred.

An argument against the prerogative has been drawn from the circumstance that, in the works of lawyers and constitutional writers, the House of Lords is always referred to as hereditary in its nature and character. Montesquieu says:-"The body of the nobility ought to be hereditary. In the first place, it is so in its own nature; and, in the next, there must be a considerable interest to preserve its privileges; privileges that in themselves are obnoxious to popular envy, and, of course, in a free state, are always in danger." Blackstone speaks of the peers as the hereditary counsellors of the Crown. Paley and Burke use the same term. It is worthy of remark, however, that these writers only referred to the Constitution as they saw it existing in their own day, and that their attention was not directed to the consequences of the exercise by the Crown of the prerogative of creating peers for life only.

It is necessary to direct attention to one other leading argument in the consideration of the present question; and that is, that no precedents are of any value which do not occur since the Revolution of 1688, when the Constitution acquired its present settled form. It is undoubtedly important in determining questions relating to the prerogative, to ascertain the effect of the settlement at the Revolution. Mr. Hallam says:1"Except in the article of the dispensing prerogative, we cannot say, on comparing the Bill of Rights with what is proved to be the law by statutes, or generally esteemed to be such on the authority of our best writers, that it [the Revolution] took away any legal power of the Crown, or enlarged the limits of popular and parliamentary privilege." "The change seemed small," observes another writer; "not a flower of the Crown Constitutional History, vol. iii. p. 143, ed. 3.

was touched, not a single new right was given to the people. The whole of the English law, in the opinion of the highest authorities-Holt, Maynard, and Somers-remained exactly the same after the Revolution as before it." "The great Charter," observes Paley,1 " and the Bill of Rights were wise and strenuous efforts to obtain security against certain abuses of regal power, by which the subject had been formerly aggrieved; but these were either of them much too partial modifications of the Constitution to give it a new original." And when we consider the numerous important questions which have been set at rest since the Revolution; when we remember that since that time general warrants have been declared illegal; that the law of libel has been placed on a more satisfactory footing; that the freedom of elections has been secured; that the judges have been made more independent of the Crown; that the Habeas Corpus Act has been extended; and that the liberty of the press has been established; the argument above adverted to loses a good deal of its force.


Paley has finely compared the British Constitution to one of those old mansions which, instead of being built all at once, after a regular plan, and according to the rules of architecture at present established, has been reared in different ages of the art, has been altered from time to time, and has been continually receiving additions and repairs suited to the taste, fortune, and conveniency of its successive proprietors." Is it even now too late to add, if necessary, a wing or a pillar to this glorious building?

On the whole, however, it must be considered, we presume, extremely doubtful whether the prerogative under consideration be in conformity with the principles of the Constitution as at present established.

We have left ourselves little room to speak of the expediency of the exercise of the prerogative of creating peers for life. It should be remarked, in the first place, that if an act of the prerogative be inexpedient or unwise, it does not follow as a consequence that it is also unconstitutional. "Some writers

1 Paley's Philosophy, Works, p. 640, ed. 1849.
2 Ibid. p. 640.

« PreviousContinue »