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upon the subject," says Paley, "absurdly confound what is constitutional with what is expedient; pronouncing forthwith a measure to be unconstitutional, which they adjudge in any respect to be detrimental or dangerous.”1
It is contended on one side, that such an exercise of the prerogative is a direct attack on the hereditary character of the Upper House, calculated, in effect, to destroy its independence, and make the House of Lords in time elective, and entirely dependent on the ministry for the time being. The resort which may be had to this prerogative for the purpose of swamping the House of Peers has been much insisted on; and the instance of the twelve peers in the reign of Queen Anne, and the evermemorable threat held over the House of Lords at the time of the Reform Bill, are relied on as convincing proofs of the dangers which would be attendant on the exercise of the present prerogative. We are also directed to take warning from the occurrences in France. On the other side it is replied, that an occasional exercise of the prerogative now claimed would be wise and beneficial; that it would enable the Crown to form a strong appellate Court, by the elevation to the House of Lords as peers for life of eminent lawyers, whose fortunes would not admit of their accepting hereditary dignities; and that men of eminence generally, whether in literature, science, or the fine arts, might also be occasionally raised to the peerage. Such acts of prerogative, it is contended, would operate beneficially, and while conferring honour on the individuals selected, would also tend to raise the House of Peers in the estimation of the country. With reference, too, to the dangers attending the exercise of the prerogative by ministers reckless or unscrupulous, it is replied that, in this free country, there exists above and beyond the Crown a prerogative of public opinion sufficient to check and control any undue or improper exercise of the present prerogative. "It may be observed," says Sir Robert Walpole, "that the King, for his own sake, will rarely make a great number of peers, for they, being usually created by the influence of the First Minister, soon become, upon a change of adminis
1 Paley's Philosophy, Works, p. 640, ed. 1849.
tration, a weight against the Crown." "In the British," observes Paley,1 "and possibly in all other constitutions, there exists a wide difference between the actual state of the government and the theory. When we contemplate the theory of the British Government, we see the King invested with the most absolute personal impunity; with a power of rejecting laws which have been resolved upon by both Houses of Parliament. What is this, a foreigner might ask, but a more circuitous despotism? Yet, when we turn our attention from the legal extent to the actual exercise of royal authority in England, we see these formidable prerogatives dwindled into mere ceremonies."
There may, indeed, be dangers in admitting the right of the Crown to create peers for life; but on a careful review of the arguments on the present question, we cannot help arriving at the conclusion that those who have urged the many and great dangers attending the exercise of this prerogative, have in some manner overlooked the genius and spirit of our Constitution. Still, from the very decided opinion expressed on this subject in the House of Lords, the question is not likely to be soon again raised, although it will still remain a moot point for the consideration of lawyers and constitutional writers.
However, the measure now thrown out, for making better provision for the discharge of the appellate jurisdiction of the House of Lords, to which we have already adverted, contained a legislative admission of the expediency of creating a limited number of life-peers for the special object in view. The Bill proposed to enact that it should be lawful for her Majesty to appoint two persons as Deputy Speakers of the House of Lords, to assist in the judicial business of the House, and to hold their offices during good behaviour; and that no person3 not having succeeded to an hereditary peerage should be qualified to be appointed Deputy Speaker under the Act, unless her Majesty should have previously granted to him a peerage for the term of his life, or for some greater estate, nor unless he should have held any one of the judicial offices mentioned in the Act. The
Paley's Philosophy, Works, p. 640, ed. 1849.
Bill proposed to provide for the appointment of the judicial peers as follows : 1—
"If her Majesty by her letters patent shall have granted, or shall hereafter grant, a peerage for life only to any person who shall be appointed Lord High Chancellor of Great Britain, or Deputy Speaker under this Act, such person, on receiving the appointment of Lord High Chancellor of Great Britain, or of Deputy Speaker under this Act, shall be entitled to receive a writ of summons as a Peer of Parliament, and on receiving the same to sit and vote in the House of Lords, and to have and enjoy all the rights and privileges of a Peer of Parliament during his life, if there are not more than three other persons having seats in the House of Lords as peers for life only at the time he shall be so created: provided always, that not more than four persons shall have seats in the House of Lords at one time as peers for life only: provided also, that if any person to whom a peerage for life only shall have been granted shall inherit or receive a patent for an hereditary peerage, he shall not be reckoned as one of the peers having a seat in the House of Lords for his life only."
This Bill was founded on the Report of the Select Committee of the House of Lords appointed to inquire into the state of the appellate jurisdiction. The Committee state that, in their opinion, it is desirable that two offices should be created, to be held by two law lords, whose duty it should be to assist the House in the performance of its judicial duties; and they accordingly recommend that her Majesty should be empowered to appoint two lords to be Deputy Speakers of the House of Lords, with salaries attached to their offices.
With reference to the question of life peerages, the Committee state as follows:-"The attention of the Committee has been drawn to the difficulty which may, in some cases, be felt hereafter, of appointing the most fit persons to juridical offices connected with the House of Lords, if it cannot be done without conferring on them hereditary peerages; and it appears to the Committee advisable, that any person appointed to such an office should be enabled, by authority of Parliament,
1 Section 4.
to sit and vote in the House, and enjoy all the rights and privileges of a Peer of Parliament, under a patent conferring a peerage for life only, if the Crown may have granted, or shall grant, the same to such person, in preference to an hereditary peerage: provided always, that not more than four persons shall have seats in the House at one time as peers for life. The Committee recommend that in all respects, excepting those where change has been recommended in this Report, the functions of the Lord Chancellor, and the rights and privileges of the whole body of the peers, shall remain unaffected."
The above measure had been introduced in order to satisfy, on the one hand, the very general desire, on the part of the profession and of the public, for some improvement in the appellate jurisdiction of the House of Lords, and on the other hand, to escape the difficulty of permitting the Crown to exercise the right of creating peers for life by the aid of the prerogative alone.
We have not space to enter upon the merits of this scheme; but whatever those merits may be, without doubt the plan involves an organic change in the constitution of the House of Lords as a Court of Appeal.
With reference to the general question, doubts had been entertained whether the effect of the above Bill would not be to take away any existing right in the Crown to create peers for life. The better opinion, however, we believe, was, that the royal prerogative would have remained unaffected by the proposed measure.
ART. VI. THE ENCUMBERED ESTATES ACT.
HE case of Errington and Rorke, recently decided in the Court of Queen's Bench in Ireland, has attracted a great deal of public and legal attention. It is commonly supposed that it has shaken the titles of purchasers of estates sold under the Encumbered Estates Act. As this decision, in the propriety of which we fully concur, falls far short of this serious effect, and, we hope, can only affect a very small amount of property sold by the Encumbered Estates Commission, we shall briefly state the facts on which it is based, and the reasoning by which it is sustained.
It appears that, in 1853, the fee-simple estate of a Mr. Hamilton, situate in the county of Kildare, was brought within the sphere of the Encumbered Estates Commission for sale and transfer. It was divided into several lots for sale; among which it is necessary to notice three only, which we shall designate as lots 1, 2, 3. Lot 3 consisted of about 800 acres. The estate of Mr. Hamilton, in about 25 acres of this lot, was a reversion in fee, expectant upon a freehold interest for three lives, which was vested in a Mr. Rorke. Whether his estate in lots 1 and 2 was a reversion in fee, or the bare inheritance in fee-simple, did not appear, and was immaterial to the case in question. An absolute order for the sale of the entire estate, including lots 1, 2, 3, was made by the Commission; the customary notices, pursuant to the 23rd section of the Encumbered Estates Act, were served upon the tenants; Mr. Rorke brought in his lease in obedience to them; and by a printed rental published by, and in accordance with, the usual order of the Commission, his interest was declared binding upon the estate of Mr. Hamilton in his part of lot 3, and the sale, therefore, was expressed to be confined to the reversion in fee in this part of this lot. The sale took place shortly afterwards, pursuant to, and in conformity with, these conditions; and lot 1 was