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money,—-" Quod secundum legem Joannes Hampden oneretur.” What chance was there that any act of Henry VIII., how violent soever, would meet with opposition in a Parliament which had given him without hesitation the power of bestowing the Crown by will, and the further power of making Orders in Council which should have the force of statutes ? It is to be observed, that the instance of life peerage most relied upon is that of Thomond, granted while this absolute power was vested in the Crown by law. It was also during the existence of the Bloody Act, as the Law of the Six Articles is termed by all Protestants, inflicting capital punishment on any one who denied the dogmas, transubstantiation included, which that capricious tyrant happened to believe at the time. To rely upon precedents at such a period of our constitutional history is manifestly in the highest degree absurd : even if precedents are to be found, they would neither show that the prerogative now exists, nor prove that it ever had a legal existence.
The whole question relates to the right of sitting in Parliament under the grant of honour for life. Whatever else belongs to the honour, no one denies that the grantee possesses it. But how utterly absurd it is to contend that the Crown can give the power of sitting in a manner never known in the good times of the constitution, that is, since it was established in its present form, must appear manifest if we attend to the manner in which the House of Lords was constituted in the earlier period of its history. The lesser Council of the King, that is, his Privy Council, and his judges, were regularly summoned to Parliament, and sat and voted with the Peers. Great obscurity hangs over the question at what time those persons not being Peers ceased to vote, and only attended as assistants or advisers. Lord Hale, perhaps the highest authority on this subject, holds that this change began in the reign of Edward III. He also considered it as a great innovation, and inconsistent with constitutional principles, that judgment should be given in appeals by the House in its own name, and not, as in writs of error, in the King's
But even if all the judgments had continued to be given in the King's name, this would not have proved that any except Peers could take part in them otherwise than as advisers,
whose opinion the Lords could follow or disregard, being no more bound to ask for it than to abide by it. To ground any argument upon what the Crown may have done in those times, when it had the power of making its Privy Councillors sit with the Peers, is manifestly extremely absurd; and whatever precedents may be produced from those times, must go for absolutely nothing.
It is further to be remarked, that although, for the reasons now given, there are either no precedents at all, or if any, no precedents of the least weight, they who deny the prerogative may with perfect safety to their construction admit that the Crown once had the power, and not only exercised it, but had it by law; for a prerogative, however legal, may be lost unless it is given by statute, and then our rule of law seems to apply, that no desuetude can repeal it. Now it is clear that the Crown at one time had prerogatives touching the Peerage which no longer exist. The power of giving a seat in Parliament, by making a person a Privy Councillor, is indeed one instance of this, and we have just now referred to it. But barony by tenure affords another. The Crown could annex a barony to the tenure of land; indeed, originally, all barony was by tenure. The greater barons, tenants in capite of the Crown, sat in the Upper House, or were members of the Lords' portion of the whole, when both bodies sat in the same chamber. The lesser barons sat by their representatives in the Lower House, or formed the Commons' portion of the whole body, before the Reformation. But it has been solemnly adjudged by the Privy Council, after great argument before Vaughan, C.J., and Hale, C. B., with the Ancient Serjeant and other King's Counsel, that barony by tenure has ceased to exist, and is no longer valid in law; and the writ claimed ratione tenure was, on the report of their Lordships, refused, but granted to the competitor claiming by blood. In like manner the right to a summons jure uxoris, either, living the baroness in her own right, or claimed after her decease by the courtesy which formerly was undisputed, has been pronounced no longer to exist; and consequently the Crown can no longer give to the husband of one created a peeress the right to sit in the Lords' House. These decisions, be it observed, are of the more binding force, because they are given against the prerogative by the representatives of the Sovereign,-the Council and the judges of the Crown. It is therefore matter of demonstration that prerogatives have been at one time vested in the Crown, which, without any statutory provision either to enact, or to declare their abolition, belong to the Crown no longer, because they have fallen into desuetude. Nor is it the Crown only that has suffered this loss; the other branches of the Legislature have outlived their privileges and their powers. Where be now the protection of members of Parliament for their servants as well as for their own persons ? We observe, Lord Brougham argues, from the undoubted change which time has made in the various powers of the Crown, that its right to confer seats in Parliament upon life Peers has long since ceased by the desuetude of centuries, supposing it ever to have existed; but we take the liberty of reminding his lordship of a power exercised by the House of Commons, and referred to by himself in deciding the question of privilege against a member who denied the power of the Courts of Justice to commit members of Parliament. We find in the report of the case in Mylne and Craig (1831), reference to the proceedings of the Commons not quite a century ago,—the last year of George II.'s reign, when, under the pretence of privilege, that House tried an action of trespass, and compelled a person who had interfered with a member's right, or alleged right of fishery, to give up his claim, and promise never more to disturb the possessor.
Such a privilege, we venture to affirm, would not now be thought of by the most zealous advocate of Parliamentary privilege,-we will say, were he happily alive, by Serjeant Wilde himself, who, we were told in a late debate, by Lord Grey, refused many briefs in order that he might attend the committee on Hansard's case; but we will add what his lordship was not apparently aware of, who gave up one Spring Circuit in order to attend the committee upon the Long-Wellesley case, although he failed to obtain a decision of the House against the Court of Chancery. Lord Denman, in Hansard's case, gave other instances not less remarkable, but of more ancient date, of the length to which privilege had been carried, and without resistance, by inflicting the most cruel punishments upon persons charged with offences against the House of Commons; yet no one, as his lordship observed, could dream of now maintaining that such powers are possessed by that body. And we need go no further to refute the doctrines sometimes ventilated during the recent discussions, denying that a prerogative could fall into desuetude. In truth, all prerogative is the very creature of use and exercise; and on this rests, and from the nature of the thing must necessarily rest, its existence.
There remains to be considered the authority of Lord Coke, which appears to have been received as sufficient, without examination, by succeeding lawyers. That no text-writer can be appealed to who is better entitled to command respect on all subjects other than constitutional law, is at once admitted. But it is singular how little he appears to have studied and weighed such points. The instances of his errors are numerous on matters connected both with the frame of the constitution and its history; nor as a legal antiquary can he be put in comparison with many others. Reference has been made in the debates to his declarations on Parliamentary privilege, and to his noted mistake respecting the descent of the Duchy of Cornwall; but perhaps the most startling proof of his never having, with any attention, examined the history of the constitution, is his assuming that the Parliament at the Norman conquest was nearly what it in the course of ages afterwards became. The ancient treatise “ Modus Tenendi Parliamentum” has given rise to much dispute among legal antiquaries; but that any one should affirm its having been “rehearsed before the Conqueror, and by him approved for England," seems hardly credible. It may indeed be doubted whether Selden has not assigned it too ancient a date, when be ascribes it to the time of Edward III.; but its having been by the Conqueror “approved for England” is a fancy which it demands all our respect for Lord Coke to treat with becoming gravity. Nor have those who blindly follow the supposed authority of the passage in Co. Litt. 166 taken the trouble to examine how carelessly that passage is composed, and how manifest an error one portion of it contains, where a dignity in fee-simple is said to be given by a grant without words of inheritance, but followed by a sitting in Parlia
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ment; to which may be added the remark that it does not appear distinctly whether Lord Coke is describing the rights of peerage or only the honours of nobility. But the argument appears to be irrefragable of those who contend that were Lord Coke's authority ever so distinct, and ever so competent to prove what was the prerogative in the earliest times of the Stuarts, the abeyance into which it has fallen ever after, and more especially since the Revolution, is decisive, even if we were to admit its existence in Lord Coke's day, upon his authority. We need only recollect, to prove this position, that the decision of the Exchequer in Bates's case, recognising the prerogative of levying duties of custom in all ports, except London and the Cinque Ports, had Lord Coke's concurrence; although he afterwards, in the second part, condemns that decision as against law; he having become the leader of opposition to Charles I.'s government, and having indeed been by James I. committed to prison with Pym at the close of the session, for words spoken in Parliament disrespectful to the King's son-in-law. It may therefore be confidently affirmed, that the authority of Lord Coke upon this question can have no weight in the argument, and that no such prerogative as the one claimed now belongs to the Crown.
The reason alleged by the Government for granting the life peerage, and for following the precedent thus set, was the great convenience of adding to the number of the law lords, in whom substantially is vested the decision of appeals and writs of error. That there results some embarrassment from the merely voluntary attendance of all but the Chancellor, must be admitted, as must also be the expediency of more than one, or indeed two judges, sitting upon these cases. Three or five may be allowed to be more desirable; and however satisfactory the tribunal may for the most part have proved, the inclination seems prevalent in the House itself to adopt some plan of securing a more regular attendance of legal men, and possibly for somewhat amending the ordinary course of procedure. Various plans have been suggested. One is favoured by Mr. Macqueen (an authority greatly to be respected),--that of reviving the ancient practice of calling on lawyers not members of the