THE WENSLEYDALE CREATION.

At a time when the attention of the nation is almost exclusively

directed to the colossal struggle in which Great Britain has taken so

conspicuous a part—when the deepest anxiety is felt regarding the issue

of the conferences at Paris, which must have the effect either of

restoring peace to Europe, or of rendering the contest more desperate in

its character than before—we were surely entitled to expect that no

attempts would be made, at least by Her Majesty’s advisers, to alter or

innovate any acknowledged part of the fundamental constitution of the

realm. It is with great pain that we feel ourselves called upon to

denounce such an attempt, which appears to us not the less dangerous

because furtively made, and seemingly insignificant of its kind. All

permanent innovations, all great changes and revolutions, may be traced

to a very trifling source. The whole constitution of a country may be

overthrown in consequence of some narrow departure from its fundamental

rules—a departure which possibly may appear at the time too trivial to

demand remonstrance, but which, being drawn into a precedent, may, in

the course of years, be the means of producing the most serious and

disastrous effects. The tree that could have withstood the blast of the

wildest hurricane, will become rotten at the core, if the rain can

penetrate to its bole, even through a miserable crevice. The dykes of

Holland, which defy the winter storms, have, ere now, yielded to the

mining of that stealthy engineer, the rat, and provinces have been

inundated in consequence. And, therefore, it well becomes us to be

jealous of any attempt, however trivial, or however specious—for

plausible reasons can always be adduced on behalf of any kind of

innovation—to alter the recognised principles of our constitution, or to

introduce a totally new element into its framework.

We allude, of course, to the attempt which Her Majesty’s advisers have

thought proper to make, at altering the hereditary constitution of the

House of Lords, by the introduction of Life-Peers into that body. The

question is now being tried in the case of Mr Baron Parke, who has been

created Baron Wensleydale, without remainder to heirs; and it is

impossible, looking to the attendant circumstances, to avoid the

conclusion that this creation has been deliberately made, for the

purpose of establishing a precedent for opening the doors of the highest

deliberative assembly to a new order of nobles, who are not to have the

privilege of transmitting their rank and titles to posterity. For, if

the only object had been, as is alleged, to recruit the numbers of life

Lords upon whom the task of hearing and deciding appeals from the

inferior courts of the country must devolve, there was obviously no

necessity, nor even reason in this instance, for departing from the

usual conditions of the peerage. Lord Wensleydale (for so we are bound

to call him, in virtue of his patent of nobility from the Queen) is a

man of advanced years, and has no son. In all human probability,

therefore, the title, even though it had been destined to heirs-male, as

is the common form, would become extinct at his death. Want of fortune,

as the means of sustaining, in the future time, the social position

which a peer ought to occupy, has often been alleged, and with reason,

as a sufficient obstacle in the way of the elevation of commoners,

distinguished for their acquirements and genius, to the Peerage. It has

been said, and with great truth, that the present and fleeting gain is

more than counterbalanced by the future and permanent disadvantage. For

the acquirements and genius of the man so elevated are but personal, and

perish with him—the heirs remain as pauper peers, no ornament to their

order, and may, for a seemingly inadequate consideration, be willing to

surrender their independence, and use their legislative powers at the

bidding of an unscrupulous minister. But, in the present case, where the

chance of succession was so small, there could be little room for such

an objection; perhaps there was none, for the fortune of Lord

Wensleydale may be, for anything we know to the contrary, quite adequate

to the maintenance of a peerage; therefore we must hold that this case

was selected purposely to try the question. Indeed, supposing that Her

Majesty’s advisers were justified in making the attempt to alter the

constitution of the House of Lords by the introduction of Peers for

life, they could hardly have selected a better instance. For, if it

should be decided or declared that there is a limit to the prerogative

of the Crown, and that the creation of a peer for life, like Lord

Wensleydale, is simply a personal honour, but does not carry along with

it the privilege of a seat in the House of Lords, all unseemly questions

of precedency will be avoided. In that case it is not likely that the

experiment will be renewed; for we may safely conclude that the object

of Her Majesty’s advisers in issuing this singular patent was not to

gratify Lord Wensleydale by the gift of a barren honour, but to make him

a member of the House of Peers, entitled to speak and to vote; and

thereby to establish a precedent for the future creation of a

non-hereditary peerage.

Before entering into the questions of privilege and prerogative, it may

be as well to consider the reasons founded on expediency which have been

advanced in behalf of the creation of peerages for life. Such of her

Majesty’s ministers as have spoken upon the subject have been

exceedingly cautious and guarded in their language. None of them have

ventured to assert an opinion that, for the future, it would be

advisable to multiply this kind of peerages. Their arguments go little

beyond this—that whereas the appellate jurisdiction of the House of

Peers renders it necessary that at all times there should be among that

body persons intimately acquainted with the law, and qualified to act as

judges, it is for the advantage of the country that such creations

should be not permanent but temporary, not hereditary but personal. In

this there is not only some, but much plausibility. It is of the utmost

importance to the country that the highest legal talent should be

engaged for the last Court of Appeal; and we are not of the number of

those who consider that a court of appeal might be dispensed with. We

believe that the consciousness that there exists a tribunal which has

the power of reversing or altering their judgments, has conduced more

than anything else to stimulate the zeal, activity, and attention of the

judges in the ordinary courts of law; and it would be a very hazardous

experiment to give an irresponsible character to their decisions. We

think also, and we make this admission freely, that some decided steps

should be taken for the better regulation of the ultimate Court of

Appeal. The House of Peers, as a body, has long since abdicated its

right of sitting in judgment, except in some cases peculiar to the

peerage. The judicial duties are now invariably devolved upon judicial

Peers, that is to say, upon those who have either occupied or occupy the

highest judicial offices; and although the form of putting the question

to the House, after the opinion of the legal Peers has been delivered,

is still observed, no instance of any attempt on the part of other peers

to vote, has taken place for a long series of years. Thus the appellate

jurisdiction of the House has been confided to a small and fluctuating

committee, on whom attendance at the hearing of causes is not

compulsory; and although hitherto, as we verily believe to be the case,

the judgments have been such as to give general satisfaction, there is

no security for the continuance of a sufficiently qualified number of

adequate Judges. We think that some other arrangement for establishing

and securing a permanent tribunal of appeals should be adopted; but we

demur greatly to the plan now proposed of creating life-peerages for the

purpose of keeping the jurisdiction within the House of Lords. Very

wisely, we think, has it been provided that Judges shall not be eligible

to sit in the House of Commons. Their functions being of the utmost

importance to the wellbeing and safety of the community, it is above all

things desirable that they should not be allowed to mingle actively in

that strife of parties, which must, to a certain extent, in very many

cases, warp the judgment, or at least give a strong political bias. The

judicial atmosphere ought to be not only pure but calm, for so

constituted are the human frame and mind, that excitement of any kind is

apt to disturb the equilibrium of the judgment, and often suggests hasty

views, which will not bear the test of severe and dispassionate

investigation. Neither should the attention of a Judge be too much

directed to objects alien to his function. Undoubtedly there are minds

so active and capacious that they rebel against any restriction of their

powers, and go beyond their proper sphere, led away by a craving for

intellectual exercise, or under the influence of overpowering ambition.

But these constitute the exception, not the rule; and we humbly venture

to think that the best judges are to be found among the men who deviate

least from the tenor of their way, and who do not devote themselves

ardently to other occupations or pursuits. Therefore we have great

doubts as to the propriety of the system which would necessarily, to

some extent, expose the judge to the influences of the politician, or,

at any rate, distract his attention from what is or ought to be the main

object and purpose of his life. Besides this, it is not convenient or

decorous that there should be anywhere an unpaid tribunal upon which

such serious responsibilities devolve. Judges receive salaries in order

that they may be compelled to do their work, and overcome that tendency

towards indolence from which very few of the human race are altogether

free. The salaried Judge must act: he must attend to every case which is

brought before him, unless he can allege occasional failure of health,

or unless he declines on account of interest or affinity. But a

voluntary and unpaid Judge may absent himself at pleasure, and without

responsibility—a very serious matter to suitors, and, as we think,

inconsistent with the proper administration of justice. For many

reasons, therefore, it appears to us that the time has arrived when the

supreme appeal court of the realm should be placed upon a footing

different from that which has hitherto existed, and that it should be so

remodelled as to give it a permanent and responsible character. We have

already observed that, as regards the great body of the Peers, their

appellate jurisdiction and power is merely a name; and surely it is not

worth retaining the shadow when the substance has passed away. There are

evidently many deficiencies in the present system. The bulk of appeals

are from the Scottish courts; and as the Scotch law differs materially

from that of England, being based altogether upon a separate foundation,

it is important that at least one Judge, intimately acquainted with the

system, and trained to its technicalities, should be a member of the

court of last resort. Looking to the present state of the Scottish bar

and bench, we must confess that we entertain grave doubts whether any

competent lawyer could be found to undertake such a duty for the

unsubstantial reward of a life peerage; and we apprehend that no

satisfactory or thoroughly efficient arrangement for the determination

of appeals from the courts of England, Scotland, and Ireland can be

effected, unless based upon the principle of delegating the appellate

jurisdiction of the House of Peers to a court, holding its sittings in

London, comprising the highest legal talent which can be drawn from the

three kingdoms, but not necessarily, in so far as its members are

concerned, directly connected with the peerage. Of course, the Judges in

such a court of appeal should be, like all other Judges, the paid

servants of the State; and we are confident that such a measure, the

details of which would be matter of grave consideration, could not fail

to be acceptable, and must prove highly beneficial to the country at

large. Indeed, it is manifest that some such alteration of the law is

now peremptorily required; as it is upon the inconvenience and

insecurity of the working of the present system of appellate

jurisdiction, as vested nominally in the whole body of the House of

Peers, that the main arguments in favour of what we must consider as a

dangerous attempt to destroy the hereditary constitution of the Upper

House have been founded.

These observations of ours have not been made at random. We know that

many of the highest and best legal authorities of our time have regarded

the uncertain state of the constitution of the last court of appeal with

considerable misgivings as to the future, and that they have entertained

a deep anxiety as to the possible result, if no definite arrangement

should be made. The establishment of a responsible tribunal, such as we

have hinted at, would, in any case, have deprived the inventors and

advocates of the creation of life-peerages of their only plausible plea;

because, as we have already remarked, none of them have ventured to

express their unqualified approval of the institution of life-peers, as

giving new blood to the Legislature—they merely take their stand upon

the judicial advantages which might result from the new method of

creation. But if the same advantages, or, as it appears to us,

advantages much more important and even precious to the public interest,

could be derived from the institution of a new court, framed in

accordance and consonance with the legal practice of the realm, and

calculated to give universal satisfaction and security, we apprehend

that the House of Lords would lose nothing if it renounced what, to the

great bulk of its members, is a pure fiction of authority. The

pretext—for it is nothing more—for the introduction of life-peerages,

has been rested upon a very narrow ground; namely, the necessity of

providing for the adequate discharge of the appellate jurisdiction of

the House. By consent of Queen, Lords, and Commons, to the erection of

an independent and responsible tribunal of appeal, of which the Law

Lords of Parliament might be members, the difficulty could be obviated

at once; and then—if it should still be proposed to make a radical

change in the constitution of the Upper House—the question may be argued

upon broad and general grounds. If in any quarter—we care not how high

it be—it is deemed advisable, or expedient, or creditable, or conducive

to the maintenance of the present constitution of the realm, that

life-peerages should hereafter be copiously introduced, let the subject

be ventilated and discussed with all imaginable freedom and latitude.

But this back-blow—this poor attempt, as we must needs think it to be,

of endeavouring to gain a precedent and an example by insidious means,

without the co-operation of Parliament—strikes us as peculiarly shabby;

and is anything but wise, inasmuch as it indicates a desire to push the

prerogative of the Crown beyond the point which has been held as

constitutional since the union of the three kingdoms. In a matter such

as this is, we need hardly repeat the words of Lord Lyndhurst, that we

do not speak of the Sovereign personally, but of the advisers of the

Sovereign.

All that we have hitherto said relates to the _expediency_ of creating

life-peerages for the purpose of supplying possible deficiencies in the

number of Law Lords who now exercise the whole appellate jurisdiction of

the House of Peers. But the greater question is behind; and although we

approach the subject with considerable diffidence, we are constrained to

express our opinion that, in the case of Lord Wensleydale, the

prerogative of the Crown has been stretched beyond its proper limit. We

do not mean as to the title. The Crown is the fountain of honour; and

there seems to be little doubt that the Crown may create titles at

pleasure, without any violation of the constitution. The old orders of

Thanes and Vavasors may be resuscitated, or new orders of knighthood,

with extraordinary rank of precedence, may be formed. All that, and even

more than that, lies within the power of the Sovereign. But the

institution of a new estate, or a new order, or a new tenure of

nobility, which shall have the effect of augmenting or decreasing the

power of either of the two other recognised and established estates of

the realm, the Lords or the Commons, is an assumption or exercise of

power beyond the prerogative of the Crown; and we, who certainly do not

lean to the side of democracy, must oppose any such innovation, as

strongly and strenuously as we would do were the true privileges of the

Crown assailed. We deny not the right of the Queen to bestow honours and

titles, and to give rank and precedence; but the case is very different

when we find the Queen—or, to speak more accurately and properly, the

Queen’s advisers—attempting to alter the recognised hereditary character

of one of the legislative chambers.

Let us then consider what is the constitution of the House of Lords.

Diligent search has been made for precedents to show that, at an early

period of English history, the Crown was in the use of granting peerages

for life only; and we are bound to allow that sufficient evidence has

been brought to establish the fact that, in the reign of Richard II., at

least one peerage of that nature was created. But those who will take

the trouble to peruse the elaborate reports upon the dignity of the

Peerage, issued in 1820, 1822, and 1825, will find that in those early

times the Crown assumed and exercised most arbitrary powers. Peers were

summoned or not summoned to Parliament according to the will of the

sovereign, and the right to exclude from Parliament a peer who had once

taken his seat, was exercised by the Crown in repeated instances. If

precedents drawn from the early history of England are to be accepted as

rules for interpreting the existing measure of the prerogative of the

Crown, we must necessarily conclude that the Crown has the power,

without trial or forfeiture, to suspend or take away the privileges of

any peer, and that this can be done simply by withholding a writ at the

time when Parliament is summoned. We doubt greatly whether even the

strongest stickler for prerogative would maintain that such a course

would be justifiable at the present day. But in truth we set very little

value upon such precedents, beyond what attaches to them as mere

antiquarian inquiries; and for this reason, that the ancient usage of

England in regard to peerages is of no value in determining the rights,

privileges, or position of members of the present House of Lords. It

seems to be forgotten that there is now no English House, nor are there

any Peers of England. The unions with Scotland and Ireland entirely

altered the character of the existing Peerage. To borrow the language of

the Third Report upon the Dignity;—

“When the union of England and Scotland was accomplished in the reign

of Queen Anne, all the adult peers of the realm of England were

entitled to writs of summons in the characters of temporal Lords of

the Parliament of England, as that Parliament was then constituted;

_but there are now no longer any peers of the realm of England_. By

the union with Scotland, England as well as Scotland ceased to be

distinct realms; and all the peers of the realm of England, and all

the peers of the realm of Scotland, became, by the terms of the Treaty

of Union, _peers of the new kingdom of Great Britain_.”

In like manner the union of Great Britain and Ireland produced a change

in the character of the Peerage:—

“All the peers of Ireland, and all the Peers of Great Britain, and all

the peers of the United Kingdom since created, form, in some degree,

the second estate of the realm of the United Kingdom, qualified by the

power given to the peers of Ireland to divest themselves of their

privileges as such, under certain circumstances; but twenty-eight only

of the peers of Ireland are Lords of Parliament, being elected to

represent the rest of the peers of Ireland in Parliament, and their

election being for life. A power is also reserved to the Crown to

create new peers of Ireland, under certain circumstances; and the

peers so created become also part of the whole body of peers of the

United Kingdom, though not by their creation Lords of Parliament, and

though, by the terms of their creation, made peers of Ireland only.

“It seems manifest, therefore, that not only the peers of the realm of

the United Kingdom of Great Britain and Ireland at the present day,

but all the members of the legislative assemblies of the United

Kingdom, both as bodies, and as individual members of different

bodies, and in their several different and respective rights and

capacities, bear little resemblance to any of the members of the

legislative assemblies of the realm of England from the Conquest,

before and to the reign of John; and the peers of the realm of the

United Kingdom, both as a body and individually, are very different

from the peers of the realm of England, before the Union of England

and Scotland in the reign of Queen Anne, _and especially as many of

them are not Lords of Parliament_; and such of them as are elected to

represent the peers of Scotland, and such of them as are elected to

represent the peers of Ireland, are Lords of Parliament by election,

and not by virtue of their respective dignities, though the possession

of those dignities is a necessary qualification to warrant their

election.”—_Third Report on the Dignity of the Peerage_, pp. 34, 35.

It is manifest, therefore, that such a question as this, affecting the

status and privileges of the Peerage of the United Kingdom, cannot be

settled by reference to early English precedents. There is no longer an

English peerage, neither is there an English Sovereign. The Acts of

Union have quite altered the character of the Peerage, for they have

established a clear and intelligible distinction between Peers of the

United Kingdom and Lords of Parliament. The mere possession of the

dignity by no means implies the right to sit in the House of Lords. With

the exception of sixteen who are elected to serve in each Parliament,

the whole body of what were the peers of Scotland, but who now are peers

of the United Kingdom, are excluded from the House of Lords, unless

qualified to sit in virtue of a new patent; and that portion of the

Peerage of the United Kingdom whose ancestors were peers of Ireland, are

represented in Parliament by twenty-eight of their number. It is

important that this distinction should be borne in mind; the more

especially because, by a loose and inaccurate mode of expression, many

people are led to think that the descendants of the old Scottish and

Irish peers are not peers of the United Kingdom. Yet such unquestionably

is their character; but though peers of the United Kingdom, they are not

necessarily members of the House of Lords.

If, therefore, precedent is to be regarded as affording any rule for

ascertaining the extent of the Sovereign’s prerogative, it humbly

appears to us that no instance from the history of England previous to

the unions with Scotland and Ireland, can be accepted as satisfactory.

The laws of England, as a province or component part of the realm, may

have remained intact; but the character of the Peerage was entirely

altered. The question is not now, What were the powers or extent of the

prerogative of the monarchs of England? It is simply this, What are the

powers, and what is the prerogative of the Sovereign of the United

Kingdom of Great Britain and Ireland? For otherwise, be it observed, the

search for precedents must be extended both to Scotland and Ireland, and

we apprehend that investigation so directed might lead to some curious

results. We know that King James, who succeeded to the throne of

England, had such an exalted notion of his prerogative, that in his

progress southward he actually tried in person, and condemned to death,

an unfortunate footpad, who in all probability would have received a

milder sentence from a less august tribunal. As to creations of the

peerage in Scotland, take the case of the Barony of Rutherford. That

peerage was created by Charles II., in 1661; a much more recent

authority than Richard II.; and the destination was to Andrew

Rutherford, and the heirs-male of his body, “quibus deficientibus,

quamcumque aliam personam seu personas quas sibi quoad vixerit,

quinetiam in articulo mortis, ad ei succedendum, ac fore ejus hæredes

talliæ et provisionis in eadem dignitate, nominare et designare

placuerit, secundum nominationem et designationem manu ejus

subscribendam, subque provisionibus restrictionibus et conditionibus a

dicto Andrea, pro ejus arbitrio, in dicta designatione experimendis.” In

short, if the first Lord Rutherford had no heirs-male, he was entitled

by this patent to assign the dignity, even on death-bed, to any person

whom he might choose to name; and there was nothing to prevent him, if

so disposed, from having nominated his footman to succeed him in the

peerage! Here is a precedent to which we respectfully request the

attention of those who are bent upon asserting the unlimited nature of

the royal prerogative; and we should like to know whether they are

prepared to maintain that such a patent, if granted now, would be

regarded as constitutional, and would be held sufficient to entitle _the

assignee_, not the heir, of the originally created peer to sit in the

House of Lords? Certainly we are entitled to demand, if this case of

Lord Wensleydale is to be decided upon precedents, a distinct answer to

the foregoing question. For, as we have already shown—we trust

distinctly, and we know incontrovertibly—the interest now at stake

concerns not the Peerage of England, which has long since ceased to

exist, but the interest of the Peerage of the United Kingdom; and

therefore precedents drawn from the history of England can have no more

weight than precedents drawn from the histories or records of Scotland

or of Ireland.

We think that no weight whatever is to be given to such precedents. No

sovereign of the United Kingdom of Great Britain and Ireland has, till

now, attempted to alter the hereditary character of the Peerage. This is

the very first instance of a peerage for life granted in the monarchy

under which we live, and it cannot be considered otherwise than as an

innovation. We use that term in its most innocuous sense; not meaning

thereby to challenge the right of the Crown to confer a new description

of dignity, but simply marking the fact that the dignity, as granted, is

new. But the creation of such a dignity by no means carries with it the

right to a seat in the House of Lords. As we have already shown, many of

the Peers of the United Kingdom, all of whom are hereditary, are

expressly excluded from that House, not by will of the Sovereign alone,

but by express statute, bearing the authority of the Three Estates of

the realm. If there be any meaning whatever in the phrase that this is a

“limited monarchy,” it must be held to signify that the Crown cannot,

_ex proprio motu_, interfere with the constitution of the other two

Estates. It cannot, we know well, interfere arbitrarily with the

constitution of the House of Commons; but is it not an interference with

the constitution of the House of Lords, when we find a new kind of

peerage created, for the purpose of giving the party so created a voice

in the Legislature? Is that not directly contrary to constitutional

usage—to the “lex et consuetudo Parliamenti,” which has been justly held

as the great bulwark of our national freedom? On this point we invite

consideration; and the more deeply it is considered, the stronger, we

are assured, will be the conviction that the present attempt, if

successful, would be highly dangerous to the liberties of the country.

All must agree with us that it is of the most vital importance that the

independence of the two national chambers should be maintained. The

House of Commons cannot be otherwise than independent, because it is

strictly electoral. All proposals which have hitherto been made to place

a certain number of seats at the disposal of ministers, or rather to

allow ministers to sit and vote without representing a constituency,

have been scouted; and although very plausible arguments have from time

to time been advanced to prove the expediency of such an arrangement,

these have failed to convince the people of this country that it would

be safe to depart, in any case, from the electoral system of return. The

House of Peers hitherto has been independent, because, though the Crown

has the right of creating new peers, that right has only been exercised

according to the existing and understood conditions; and the hereditary

constitution of the House renders it impossible to suppose that any

undue or exorbitant exercise of the power of the Crown, in creating new

peers, can permanently affect its independence. It by no means follows

that the successor of the original peer is to be swayed by the same

motives which affected his father, or that he will tread implicitly in

his footsteps; and therefore, even in times of great excitement, the

power of creation has been exercised within limits by the advisers of

the Crown. Lord Brougham, who, in the days of the Reform Bill, was not

very scrupulous, intended, as he tells us himself, to advise his

sovereign, William IV., to exercise his prerogative to an extent which

never had been attempted before, and which, we devoutly trust, will

never be attempted again. He says, “When I went to Windsor with Lord

Grey, I had a list of EIGHTY creations, framed upon the principle of

making the least possible permanent addition to our House, and to the

aristocracy, by calling up peers’ eldest sons—by choosing men without

families—by taking Scotch and Irish peers.” It is of no avail now to

revert to the past, or to enter into any discussion whether or not the

proposed measure was justifiable; more especially as Lord Brougham adds,

“But such was my deep sense of the dreadful consequences of the act,

that I much question whether I should not have preferred running the

risk of confusion that attended the loss of the bill as it then stood.”

Under the present hereditary system, there is little danger that the

House of Peers will lose its independent character; nor could it be so

affected, even for a short period, save by some such exorbitant exercise

of the power of the Crown, by creating simultaneously an undue and

unconstitutional number of peers. But the case would be widely different

if life-peerages were to be allowed, and recognised as conferring a

right to sit in the House of Lords. Peerages in the ordinary course of

succession become rapidly extinct. In 1707, when the Union Roll of

Scotland was made up, the number of the Peerage amounted to 154; and

since then six, having proved their claims, have been added, thus

swelling the number to 160. At present there are only 82 members of that

Peerage, showing a diminution of nearly _one-half_ in the course of 150

years. If, then, the lapse of hereditary peerages is to be supplied—as

no doubt it will be supplied, should the claim of Lord Wensleydale to

take his seat in the House of Peers be allowed—by peers created for life

only, who can fail to see that, in the course of time, the independence

of the Upper House must be entirely extinguished? In the natural course

of events, that Chamber must become an appanage of the Crown, very much

indeed in the condition of the old English Chamber of Peers, when the

Crown exercised its discretion in issuing or withholding writs of

summons to Parliament. Therein, we conclude, lies the real danger. We

speak of “the constitution of the country,” and men regard the term as

vague because so much is implied. But it is different when we consider

separately the constitution of each branch of the Legislature. Then we

are dealing, not with generalities, but with facts; and we appeal, not

only to the antiquarian and the genealogist, but to the understanding of

all educated men, whether, until now, they ever conceived the

possibility of a non-hereditary House of Lords? Surely, in 1832, when a

design for swamping that House was seriously entertained, the legality

of creating peerages for life must have occurred to some of the men of

acute and daring intellect who were willing to peril so much for the

success of their favourite measure, and yet no proposal of the kind was

put forward. It is in the “ennoblement of the blood” which, once

bestowed, the sovereign cannot recall, that the essential privilege and

pre-eminence of the Peerage lies. Take that away, and the whole

character of the dignity is altered.

Some kind of argument has been attempted to be drawn in favour of

life-peerages, from the patent fact that bishops have seats in the House

of Lords. To that we answer that the “Spiritual Lords,” as they are

termed, sit there partly by consuetude, and partly by statute; and

Blackstone thus explains the reason of their sitting: “These” (_i.e._

the Spiritual Lords) “hold, or are supposed to hold, certain ancient

baronies under the Queen; for William the Conqueror thought proper to

change the spiritual tenure of frankalmoign, or free alms, under which

the bishops held their lands during the Saxon government, into the

feodal or Norman tenure by barony, which subjected their estates to all

civil charges and assessments, from which they were before exempt; and

in right of succession to those baronies which were unalienable from

their respective dignities, the bishops and abbots were allowed their

seats in the House of Lords.” And let it be specially remarked, that the

Crown has no power to call a newly-created bishop, in virtue of his

bishopric, to sit in the House of Lords. This is distinctly asserted by

the statute 10 and 11 Vict. cap. 108, which provides that the number of

English Lords Spiritual shall not be increased by the creation of any

new bishopric. So here is a precedent, if precedents are to be sought

for, limiting the power of the Crown as to new dignities, and debarring

it from interfering with the constituted rights of another estate of the

realm.

In the course of this discussion upon a subject not only interesting,

but of the highest importance, we have studiously avoided mixing up the

question of the right of the Crown to confer titles of honour at

pleasure, with that of the exercise of the prerogative to create,

contrary to consuetude, a new kind of nobility to sit in the House of

Lords. They are indeed totally separate questions, and must so be

considered in order to arrive at a proper understanding of the point at

issue. We submit that this much is clear and evident—1st, That the right

of sitting in the House of Lords is not the necessary consequence of the

possession of a British peerage; 2d, That, with the exception of the

Bishops or Lords Spiritual, who sit in the character of holders of

ancient baronies under the Queen, all the members of the House of Lords

are hereditary peers; 3d, That since the union of England and Scotland,

which merged the two ancient kingdoms into one monarchy under the name

of Great Britain, and made all the existing peers, without any

exception, peers of Great Britain, there has been no instance of any

attempt on the part of the Crown to create peerages without remainder;

4th, That the same observation applies to the United Kingdom of Great

Britain and Ireland, which was established by the Act of Union with

Ireland, and which made all existing peers, peers of the United Kingdom.

The present is the first instance in which a title of nobility, without

remainder, has been conferred by patent, and the mere title, as a

personal honour, may be unimpeachable. But it is a very different thing

when it is attempted to give the holder of that title a seat in the

House of Lords, which, we humbly venture to think, is beyond the power

of the Crown, because it is contrary to the acknowledged constitution

and hereditary character of the House of Lords. That there must be some

limit to the exercise of the prerogative is certain; and we shall put a

case for the solution of those who take the opposite view. It is this:

Would the Crown be entitled to issue a writ of summons to any peer of

the United Kingdom, who is such in virtue of his representing an old

Scottish or Irish peerage; and would such peer be entitled, in respect

of that writ, to take his seat in the House of Lords? We apprehend that

there can be but one answer to that. Such an attempt would be directly

contrary to and in violation of the terms of the Acts of Union. No man

surely will maintain that Queen Anne could have evaded the express

conditions of the Treaty of Union, by creating all the former peers of

Scotland who became peers of Great Britain (with the exception of the

sixteen representatives), peers for life, without remainder, and so have

effected an absolute revolution in the character of the then existing

House of Lords. It was not until the year 1782, seventy years after the

Union, that a writ of summons was allowed to be issued to Douglas Duke

of Hamilton, in the character of Duke of Brandon, a dignity which had

been given to his ancestor in 1711. Previous to that decision, it seems

to have been maintained that no subsequent patent to a peer, who

originally was a peer of Scotland, could entitle him to a writ of

summons to sit in the House of Lords; and the point was twice

adjudicated upon in the House of Lords: first in the case of the Duke of

Hamilton, already mentioned; and, secondly, in that of the Duke of

Queensberry, who, 1719, asserted his right to a writ of summons in his

character of Duke of Dover. In both instances the decision was hostile

to the claim; but the point was finally set at rest by the admission of

the Duke of Hamilton to sit as Duke of Brandon under that patent.

If the Crown can now create a peer for life, so as to entitle him to a

seat in Parliament, it must necessarily have possessed that power 150

years ago; and, if so, every one of the Scottish peers might have been

called to the Upper House by the simple expedient of giving them new

patents for life. Such an attempt would undoubtedly have been considered

illegal, unconstitutional, and utterly subversive of the Union; and yet

we cannot see wherein such an attempt would have differed in principle

from that which is now made to introduce Lord Wensleydale to the House

of Lords. It is only by the consent of Queen, Lords, and Commons, that

the fundamental character of any of the three great Estates of the realm

can be altered; and the attempt to destroy or impair the independence of

one of them is ominous for the stability of the others.

_Printed by William Blackwood and Sons, Edinburgh._

-----

Footnote 1:

_A History of Rome from the Earliest Times to the Establishment of the

Empire._ By HENRY G. LIDDELL, D.D., Dean of Christchurch, Oxford, late

Head Master of Westminster School.

Footnote 2:

This was a law, passed after the battle of Cannæ, at the instance of

the tribune Oppius, “by which it was forbidden that any woman should

wear a gay-coloured dress, or have more than half an ounce of gold to

ornament her person, and that none should approach within a mile of

any city or town in a car drawn by horses.”—Vol. i. p. 363.

Footnote 3:

He had caused a fugitive and suppliant Gaul to be assassinated in his

own tent, where he was feasting with a favourite youth, in order that

the dying agonies of the man might afford an amusement to his unworthy

minion.—Vol. ii. p. 61.

Footnote 4:

_Histoire des Français des Divers Etats._ Victor Lecou, Libraire.

Paris, 1853.

Footnote 5:

One curious example of this kind of thing we remember to have seen in

the preface to the new edition of a work of some reputation. The

devout author, alluding to the success of his performance, offers his

grateful thanks to Providence and the Periodical Press.

Footnote 6:

Like some people nearer home, each of them (and many another besides

them) avers that his paper has the largest circulation of any journal

not only in America, but _in the world_. Of all statistics, the least

credible are those of newspaper proprietors.

Footnote 7:

We are fully prepared to find Mr Bennett attributing our unfavourable

remarks to a great “conspiracy” among the “aristocratic cliques” of

England against American institutions in general, and the _New York

Herald_ in particular. This is an old trick, but the American public

is too sensible any longer to be taken in by such nonsense. Mr

Bennett’s pretensions to represent the general sentiments of the

United States, have nowhere been more indignantly repudiated than in

New York. If we imagined that any American whose opinion is worth

considering, would interpret our criticism as implying any unkindly

feeling to his country, these pages should never have seen the light.

The objects of our criticism are individual men.

Footnote 8:

The _North American Review_ thanks Mr Parton warmly for his brave—his

noble book. Was the orthodox Grannie dozing when she read it?

Footnote 9:

The meaning of the words “Whig,” “Democrat,” &c., and the combination

in the same individuals of Whig and Protectionist, Conservative and

Democrat, are somewhat puzzling to those who have not studied the

complicated subject of American politics.

Footnote 10:

Of the printing-office and editorial rooms Mr Parton gives a minute

account, not failing to give us the names and describe the personal

attractions of all the leading officials, including the distinguished

foreman, Mr T. Rooker, who warns “_gentlemen_ desiring to wash and

soak their distributing matter,” to use the “metal galleys” he has

cast for that purpose! “It took the world,” says Mr P., “an unknown

number of thousand years to arrive at that word GENTLEMEN.” What a

pity that some smart man does not write a little book on “The

Flunkeyism of Democracy.”

Footnote 11:

On this subject the biography maintains, with one or two exceptions, a

prudent reserve. One pathetic description is attempted of the old

sinner, “as he stood in his editorial rooms in Nassau Street, _while

from his head was washed the blood that incarnadined the snows of

fifty winters_.” After the washing of his headpiece, the invincible

editor coolly sat down to narrate the “assassination” in his own

choice style for the benefit of his readers. The following may pass as

a specimen of his manner. “James Watson Webb,” editor of the _Courier

and Enquirer_, was an old comrade of the writer’s.

“As I was leisurely pursuing my business yesterday, in Wall Street,

collecting the information which is daily disseminated in the

_Herald_, James Watson Webb came up to me on the northern side of the

street—said something which I could not hear distinctly, then pushed

me down the stone steps leading to one of the broker’s offices, and

commenced fighting with a species of brutal and demoniac desperation

characteristic of a fury.

“My damage is a scratch, about three-quarters of an inch in length, on

the third finger of the left hand, which I received from the iron

railing I was forced against, and three buttons torn from my vest,

which any tailor will reinstate for a sixpence. His loss is a rent

from top to bottom of a very beautiful black coat, which cost the

ruffian 40 dollars, and a blow in the face, which may have knocked

down his throat some of his infernal teeth for anything I know.

Balance in my favour, 39 dollars, 94 cents.”

Footnote 12:

Mr Bennett, it would appear, is not indeed utterly free from the human

feeling of “love of approbation”—the approbation, however, of

“peculiar” characters. Mr O’Connell insulted him at a great Repeal

gathering in Dublin, by saying, when his card was presented, “We don’t

want him here. He is one of the conductors of one of the vilest

Gazettes ever published by infamous publishers.” Poor Bennett was “ill

for some days in Scotland”—probably, thinks the tender biographer, in

consequence of this unexpected repulse from a brother demagogue.

Footnote 13:

Gibbon.

Footnote 14:

_Report by the Commissioners for the British Fisheries of their

Proceedings in the Year ended 31st December 1854; being Fishing 1854._

Edinburgh, 1855.

Article “FISHERIES” in the current edition of the _Encyclopædia

Britannica_, vol. ix. Edinburgh, 1855.

Footnote 15:

This fearful loss, it may be borne in mind, fell not upon fishermen

and merchants, but upon the poor fishermen alone—most of the survivors

being thereby rendered destitute. “Of those who perished at Wick, 17

left widows and 60 children; at Helmsdale, the 13 drowned have left 9

widows and 25 children; of the 26 men belonging to Port Gordon and

Buckie, who perished at Peterhead, 8 have left widows and 22 children;

and, including the 13 widows and 54 children of the 19 men lost

belonging to Stonehaven and Johnshaven, there will be left 47 widows

and 161 children totally unprovided for—a calamity without precedent

in the annals of the British fisheries.”—CAPTAIN WASHINGTON’S

_Report_, p. xvii.

Footnote 16:

_Report—Fishing Boats_ (Scotland). Ordered by the House of Commons to

be printed, 28th July 1849.

Footnote 17:

The year above referred to was that of 1848. Still larger captures and

comparative increase in the quantity cured have since occurred. Thus,

in 1849, there were cured at Wick 140,505 barrels.

Footnote 18:

_Essays on the Trade, Commerce, Manufactures, and Fisheries of

Scotland_, vol. iii. p. 197. Edinburgh, 1778.

Footnote 19:

_Eighth Annual Report of the Board of Supervision for the Relief of

the Poor in Scotland._ Edinburgh, 1853.

Footnote 20:

Value of boats employed in the fisheries, £225,830

Do. of nets „ „ 303,666

Do. of lines „ „ 57,924

————

Total (for 1854), £587,420

Footnote 21:

The above numbers are exclusive of between _four and five thousand

men_ engaged in the _export_ fishing trade.

Footnote 22:

The following is the present constitution of the Board:

_Commissioners_—Lord Murray; Earl of Caithness; George Traill, M.P.;

James Wilson; Rear-Admiral Henry Dundas; Andrew Coventry; James T.

Gibson-Craig; Professor Traill; William Mitchell Innes; Lord Elcho,

M.P.; Sir James Matheson, M.P.; John Thomson Gordon; George Loch; with

Lord Advocate Moncreiff, and Solicitor-General Maitland, _Ex

officiis_.—Secretary, Hon. B. F. Primrose.

Footnote 23:

_Twentieth Report from the Board of Public Works, Ireland_, p. 236.

London, 1852.

Footnote 24:

_Report of the Commissioners of Fisheries, Ireland, for 1853._ Dublin,

1854.

Footnote 25:

Ibid. 1854. Dublin, 1855.

Footnote 26:

_Report of the Commissioners of Fisheries, Ireland, for 1854_, p. 12.

The above quotation refers to the herring fishery carried on at Howth.

We think it right to state that the schedules appended to the report

bear testimony “to the peaceable and orderly habits of the fishermen,

and to the total absence of any conflicts or disturbance of any kind.”

It is, unfortunately, added, that “it is much to be deplored that

nearly all agree in describing an unexampled state of depression as

extending to all parts of the coast.”—_Ibid._, p. 6.

Footnote 27:

_Ibid._, p. 6. As the law now stands, there is no regulation in

respect to the size of the mesh of nets used in Ireland for the

capture of fish other than of the salmon species.

Footnote 28:

Letter from Mr Methuen to the Lord Advocate; _Edinburgh Evening

Courant_, February 6, 1856.

Footnote 29:

We have recently received the _Commercial Circular_ of Messrs

Plüddeman and Kirstein of Stettin, of date the 20th January 1856.

Referring to the increased consumption of our herrings in the

Continental markets during the last season, they attributed it chiefly

to the high prices of all descriptions of _meat_, as a consequence of

the high value of rye, and all other grains, caused by the blockade of

the Russian ports, and the failure of the Continental crops. The

following is their summary of the importation of Scotch herrings, into

their own and neighbouring districts, during the last four years:—

┌──────────┬──────────┬──────────┬──────────┬──────────┬───────────┐

│ Years. │ Stettin. │ Harburg. │ Hamburg. │ Dantzic. │Königsberg.│

├──────────┼──────────┼──────────┼──────────┼──────────┼───────────┤

│ │ Barrels. │ Barrels. │ Barrels. │ Barrels. │ Barrels. │

│ 1852│ 121,290│ 10,000│ 44,000│ 22,146│ about 4000│

│ 1853│ 123,537│ 26,000│ 22,000│ 44,272│ about 5000│

│ 1854│ 118,800│ 52,400│ 25,550│ 28,009│ 2758│

│ 1855│ 154,961│ 59,769│ 26,500│ 66,122│ 15,070│

└──────────┴──────────┴──────────┴──────────┴──────────┴───────────┘

The above transmissions for 1855 give a total of 322,422 barrels of

Scotch herrings, of which the price to our curers, for such as were

full crown branded, varied from L.1, 1s. to L.1, 4s. each, producing,

with such as were of a somewhat inferior quality and price, an

enormous aggregate of income from the Prussian ports alone.

We may here add, that there is an immediate prospect of the duty on

our herrings being greatly reduced in Belgium. It is at present 13

francs (or about 11s.) per barrel—a tax which quite prohibits

importation. When the great cities of Brussels, Ghent, Liège, Louvain,

Antwerp, Bruges, Mons, Namur, Malines, &c., are open to our produce,

what may we not hope for from the appetites of a Catholic and

therefore fish-eating population?

Footnote 30:

We have reason to believe that petitions to the Treasury for the

maintenance of the Board of Fisheries and its official brand, have

been presented or are in course of transmission from the following

twenty-one ports in this country, viz.:—Wick Town-Council, Wick

Chamber of Commerce, Helmsdale, Burghhead, Lossiemouth, Macduff,

Banff, Gardenstown, Whitehills, Portsoy, Fraserburgh, Peterhead,

Montrose, Anstruther, Leith Chamber of Commerce, Eyemouth, Burnmouth,

Coldingham, Berwick-upon-Tweed, &c., Glasgow, Greenock, Bute. The

following places on the Continent have sent in corresponding

petitions, viz.:—Stettin, Königsberg, Dantzic, Berlin, Breslau,

Dresden, Magdeburg, Harburg, Hamburg.

Footnote 31:

_Memoir of the Rev. Sydney Smith._ By his Daughter, LADY HOLLAND.

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