TOPICS OF THE DAY.
THE ROYAL PREROGATIVE OF CREATING PEERS, ILLUSTRATED BY FACTS AND AUTHORITIES.
MR. RinGwAr has favoured us with an early copy of a pamphlet, about to be published, containing an elaborate historical ar- gument for the Prerogative of creating Peers. The subject is at no period without interest, and, at the present moment, it has peculiar claims to attention. For although the argu- ment against a creation of Peers, for the purpose of passing the Reform Bill, rests ostensibly on technical objections, there can be no doubt, that the grand cause why it is resisted, is the desire, on the part of the majority of the present Peers, to resist the exercise of the prerogative in any way that shall take away or limit their personal and family influence.'
I. CONSTITUTION OF THE PEERS.
The origin of the House of Peers is Very clearly traced by the Lords' Committees; from whose Reports, as the most authentic do- cument on the subject, the pamphlet to which we have alluded quotes very largely.
The Great Council of England, and of every nation that has possessed or retains such a council, was, doubtless, in its com- mencement, no more than an assemblage, oftentimes casual, of the various chiefs, who, possessing the landed property of the country, exercised in consequence a species of joint sovereignty with their leader. The Normans might substitute a formal assembly for the Wittenagemote of the ruder Saxons; but under the followers, as under the predecessors of the Conqueror, the claim to a share in the Government still depended on the possessions of the indivi- dual who claimed it—not on the favour of the Monarch. Under whatever name the members of the Great Council took their seats, heir only title was that of tenure. The possessor of a barony had ice in the regulation of the kingdom, because he alone had power of giving effect to the law within his domain. The urely feudal system was, in fact, a federative aristocracy ; and the superior influence of the Monarch was the result, not so much of his right, as, from the greater extent of his personal resources, his power to command the obedience of those who were in fact as in name his companions.
The first great change in the general constitution of the Eng lish Parliament, dates from about the period of the First Crusade ; when RICHARD, in order to raise supplies for his expeditions to the East, freely bartered privilege and immunity against the accu- mulated capital of the citizens and burgesses of' the various towns of his realm; and when the necessities of his military followers, -compelling them to part with a portion of their estates, in order to ;meet the expenses of their own and their retainers' equipment, the land, which had previously been vested in a few overgrown chiefs, was distributed among the mass of the people. From that time, the distinction began between the Greater and Lesser Barons,—a distinction which originated in and had reference to, not the ex- tent of the privileges of either class, but solely of their possessions. And the increasing number of these Lesser Barons, together with the increasing influence • of the towns, and the continued subdivi- sion of property, at length terminated in the separation of the Great Council into two chambers, of which the one was elective, and the other hereditary.
The Peers, in their origin, were the sole representatives of the landed interest of the kingdom,—for the plain reason, that they possessed the whole of the land of the kingdom ; and the Archbishops, Bishops, and other Spiritual dignitaries, formed part of the Council of the Nation, not because of any nicely imagined theory of' a union be- tween Church and State, but on the broad and palpable ground that each was liferented in the baronies of his diocese. The King had no means of creating a Baron, but by the gift of a barony ; and the royal prerogative, had it not been for the frequent attain- ders that were consequent on the unsettled times between RICHARD the First and HENRY the Eighth, could have been very rarely ex- erted, and when exerted must have been a source of serious bur- 'den to the Sovereign. Gradually, however, as the influence of the Sovereign became more extended, and that of individual Barons less formidable, a practice began to creep in, which ultimately led to the entire separation of property and honours.
The Barons, whether lay or ecclesiastical, under the earlier system, took their scats at the Council-table as matter of personal right. But it would sometimes happen, that the King was anxious to secure the prompt attendance of the Council, or of some of its members ; and hence originated the practice of' issuing his "writ of summons," either general or particular. This writ of summons, in its earliest form, was a simple missive, calling for the presence Of those who, independent of any such call, had a right to be pre- sent ; but in process of time it came to be employed, by the King, as a form, by which a Knight, who had not previously enjoyed a seat in the Great Council, was raised to that honour. With this peculiar exercise of the right of issuing his writ of summons, and with the earlier and less frequent mode of conferring the same dignity by letters patent, under his royal signet, may be said to have commenced the prerogative of adding indefinitely to the numbers of the Supreme Council, which has been in nearly con- stant exercise up to our times.
The nature of the title of different Peers from the com- mencement of the creation by letters patent or by writ, has been Exceedingly diversified. Some Peers have held their honours with unrestricted, some with restricted remainders ; some for their own lives, some for the lives of other parties. There is, indeed, hardly a form of holding that a theorist could plan, of which the Peerage, in ancient or modern times, does not offer an example. Up, how- ever, to the Scottish Union, there was nothing in the shape of representation in the House of Lords. That only remaining form was then introduced; and to the 200 English hereditary lawgivers, were added 16 for Scotland,—whose honours, at the most, were only worth three years' purchase. The Scottish Union introduced. a new feature amongst the Peers by writ and patent; the Irish Union introduced a still more curious feature amongst the Peers by tenure, in giving to the Archbishops and Bishops of Ireland seats in the House of Lords, neither for life nor for Parliament, but for one session of Parliament only, according to a rota esta- blished by the act.
It thus appears, that in respect of its constitution, the House of Lords has undergone very great changes. Down to the 49th of HENRY the Third, or rather to the 23rd of EDWARD the First, it exercised, subject to the King's will only, the sole legislative power of the realm ; and consisted of men, whose title, as legis- lators, was immediately connected with the property of which they were the possessors. Subsequent to the division of the Great Council into two Houses—the Lords and the Commons—the former has consisted successively of the following elements- 1st, Peers by tenure, which was its primary constitution; 2nd, Peers by patent; 3rd, Peers by writ ; 4th, Peers by election, from the sera of the Scotch Union ; 5th, Peers by rotation from that of the Irish Union.
II. NUMBERS OF THE PEERS.
The number of the House of Peers has varied as much as its constitution. From a return printed by order of the House of Lords in 1719, on an occasion to which we shall immediately advert, it appears, that at the accession of JAMES the First, the number of lay Peers amounted to 59.
JAMES the First created 62 ; there became extinct 17 ; actual addition 45
CHARLES the Second ... 59; 21 ; 38 JAMES the Second 8; 8; 0
WILLIAM the Third.... 30 ; 21 ; 9 ANNE 30; 24; 6
Up to 1719, GEORGE the First had created 20, and 10 had be- come extinct ; leaving an addition of 10, and a House of Peers, in consequence of these several additions and extinctions, of 178 in all. In the course of the reign of GEORGE the First, in addi- tion to the 10 just noticed, there occurred 10 extinctions more; making 20 in all. In the reign of GEORGE the Second, 80 titles became extinct; in that of GEORGE the Third, 157;* GEORGE the Fourth, 11; WILLIAM the Fourth, 1,—namely, the Dukedom of Clarence.t
Of the 168 P tence at the accession of GEORGE the
First, there now pAs ~ on the roll, 106 ; of Peers created by GEORGE the First, 14 remain; by GEORGE the Second, 20; by GEORGE the Third, 149by GEORGE the Fourth, 45 ; by WIL- LIAM the Fourth, 25. The number of English Peers in 1715 leas, as we have stated, 168; there have been since that period 269 cases of extinction ; the number remaining is 359 ,—which gives an actual addition of 191, and makes the number of creations in the course of 115 years, 460, or 4 a year on an average, the extinc- tions being on an average 2i.11 III. ARGUMENTS AGAINST THE LIMITATION OF THE PREROGATIVE —THE PEERAGE BILL; OPINIONS OF WALPOLE, &C.
The question now so keenly agitated—the propriety of adding to the House of Peers—is not mooted for the first time. It was regularly discussed in 1719, on occasion of the famous Peerage Bill of Lord STANHOPE ; and again in 1788 and in 1810, on the Regency Bills of Mr. PITT and Mr. PERCEVAL.
The avowed object of the Peerage Bill was to limit the members of the House of Lords. In addition to the English Peers then ex- isting, it was proposed, that no more than 6 should be created, unless in case of vacancy by extinction or otherwise; the 16 elective Scottish Peers were to be made hereditary, and 9 were to be added to their number, also hereditary; and, as in the former instance, no further creation was to take place, unless in the case of vacancy.
The question turned on the value of a Supreme Council over whose constitution the Sovereign retained no control, compared with one which the Sovereign ex mero motu might increase as he saw fit. The principal speakers against the measure were Sir RICHARD STEELE, HORACE WALPOLE, and ROBERT afterwards Sir ROBERT WALPOLE. STEELE published, on the first introduc- tion of the bill, several papers under the title of the Plebeian; which were replied to by his celebrated friend AnnisoN,—who died, however, in the interval between the introduction of the first and second bill.q There is but one noted person in the list of speakers, on the exclusory side,—Mr. Secretary CRAGGS, better known for his intimacy with POPE and his patronage of FENTON, than as an orator or a statesman. By far the most effective and eloquent speech, on either side, was that of Sir ROBERT WALPOLE; a copy of which is given in the appendix to the pamphlet from which our facts are chiefly drawn.
WALPOLE treats the abuse of creating Peers very lightly-
• GEORGE the Third created 208 Peers in all ; 59 of these have since become extinct. Burke's Extinct and Dormant Peerage. Exclusive of the Bishops, and the Irish and Scotch Peers. Oci See Spectator's Anatomy of the Peerage.. Johnson's Lives; art. Addison. The hakwao brought forward in but after- wards postponed till the next session. " If the Constitution is to be amended in the House of Lords, the greatest abuses ought to be first corrected. But what is the abuse against which this Bill so vehemently inveighs, and which it is intended to correct? The abuse of the prerogative, in creating an occasional number of Peers, is a prejudice only to the Lords; it can rarely be a prejudice to the Commons, but must gene- rally be exercised in their favour."
He notices the argument, that the King may create Peers to overawe the Commons- " Should it be argued, that in case of a difference between the two Houses, the King may exercise that branch of his prerogative, with a view to force the Commons to recede, we may reply, that upon a difference with the Commons, the King possesses his negative, and the exercise of that negative would be less culpable than making Peers to screen himself."
And he points out the mutual dependence of the Crown and the Commons, which must render differences between them rare and easily arranged; while, by a limitation of the prerogative of creating Peers, the Lords would be master of both King and Commons-
" But the strongest argument against the Bill is, that it will not only be a discouragement to virtue and merit, but would endanger our excellent Constitu- tion; for as there is a due balance between the three branches of the Legisla- ture, it will destroy that balance, and consequently subvert the whole Constitu- tion, by causing one of the three powers, which are now dependent on each other, to preponderate in the scale. The Crown is dependent upon the Com- mons by the power of granting money ; the Commons are dependent on the Crown by the power of dissolution : the Lords will now be made independent of both."
The necessity of maintaining the balance between the two Houses, is further insisted on in the following passage- " The present view of the Bill is dangerous ; the view to posterity, personal and unpardonable ; it will make the Lords masters of the King, according to their own confession, when they admit, that a change of Administration renders a new creation of Peers necessary ; for, by precluding the King from making Peers in future, it at the same time precludes him front changing the present Administration, who will naturally fill the vacancies with their own creatures ; and the new Peers will adhere to the First Minister, with the same zeal and unanimity as those created by Oxford adhered to him."
We have only to read for " present Administration," " last Administration," and substitute " Wellington " for " Oxford," in order to make WALPOLE'S argument literally applicable to the present times. For, in point of fact, the various Administrations for the last fifty years, with the brief intervals of 1807 and 1827, have been such, that the Duke of WELLINGTON may be taken as the representative of the whole, and their Peers may with perfect propriety be described as his Peers. The same arguments now brought forward against an addition to the Upper House, are meant and intended to effect a purpose precisely analogous to that which was aimed at by the advocates of the Peerage Bill of 1719; :the modern party, as the ancient did, equally seeking to perpetuate their possession of office.
In a pamphlet, which WALPOLE wro 1719, he enters at still greater length out with an observation on the necessi e Peerage Bill of uestion. He sets taming a due ba- lance between the three parts of the Constitution- " Our present Constitution consists of the King, the Peers who act in their own right, and the Representatives of the People. In the union and agreement of these constituent parts, consists our Government. If they differ irreconcile- ably, there is an actual dissolution of it without any remedy but the last. And since it's impossible, in the nature of human things, but men's opinions and in- terests will often vary and clash ; therefore the institutors of this species of mo- narchy have contriued so proper a balance of power between the several parts of it, that each state can give some check to both the other ; and two concurring, have always the means in their power to bring the third to reason, without re- curring to force, which dissolves the government."
He goes on to observe on the consequences that would ensue from the House of Commons being irresponsible and unalterable, from the example of the Long Parliament ; and on the remedy against such evils as arose out of the permanence of that famous assembly, in the power of dissolution vested in the King. He con- cludes, that all the evils, which an indissoluble House of Com- mons would naturally lead to, would equally result from an un- alterable House of Lords- " Whose honours and dignities flow from it [the Crown], and are protected by it ; and, whilst kept in a proper dependence, must ever support that power Which supports themselves."
The prerogative of adding to their number once removed, the Peers, instead of supporting the Government, might, he contends, impose on it whatever conditions they saw fit- " It [the right to create Peers] is the only resource the King and People have against any exorbitances and combinations of their body. Whilst such a pre- rogative remains in the Crown, there can seldom or never be occasion to make use of it. Their Lordships are too much concerned in the preservation of their own dignities, to provoke the Crown to a remedy that is always at hand ; and the Crown cannot debase the Nobility, and make it cheap, without lessening its own splendour and power. And this seems to be the only limitation the nature of the thing will admit of, without dissolving this species of Government."
This argument is further prosecuted in a passage, which is well worthy of consideration- " If this prerogative is taken away, the House of Lords will be a fixed inde- pendent body, not to be called to an account like a Ministry, nor to be dissolved or changed like a House of Commons: the same men will meet again with the same resolutions, and probably heightened by disappointment, and nothing can stand before them. If the House of Commons should be so unwary as to give them offence, and their Lordships think fit to declare they could act no longer in concert with a body who had used them ill, it is evident the Crown must exert its authority to choose another more to their Lordships' fancy, and afterwards use its utmost efforts to keep them in a becoming complaisance to their betters. If they should resolve to have all the great employments in England in themselves and .families ; or should take a conceit to be like the nobles of some other countries, to pay no taxes themselves, and yet receive the greatest part of what is paid by others in salaries and pensions; I would ask the advo- cates for such a law, what recourse the Crown and People have ?"
Thus far WALPOLE.
THE REGENCY BILLS; OPINIONS OF MR. PITT, MR. CANNING,
• Lo RD HARROWBY, HIS PRESENT MAJESTY.
When M.r. PITT, in 1788, introduced his Regency Bill, he ac- companied it with certain restrictions, in respect of the prerogative of making Peers, which, during the continuance of the Regency,. must have placed the Upper House in the same position in which it was the object of the Peerage to place it permanently. The ar-- guralent then, as in 1719, turned on the propriety and necessity of halving the prerogative free and unfettered. In his answer to Mr. PITT'S letter, 30th December 1788, the Prince of WALES, after- wards GEORGE the Fourth, says- " Holding, as he does, that it is an undoubted and fundamental principle of this Constitution, that th; powers and prerogatives of the Crown are vested there as a trust for the benvit of the People; and that they are sacred only as they are necessary to the preservation of that poise and balance of the Consti- tution, which experience has proved to be the true security of the liberty of the subject—must be allowed to observe, that the plea :of public utility ought to be strong, manifest, and urgent, which calls for the extinction or suspension of any one of those essential rights in the supreme power, or its representative."
In the House of Commons, Mr. JOLLIFFE, in summing up the arguments against restrictions, observed- " The reasons for this prerogative were two,—the one to enable the Score- reign to reward merit, and to bestow fiivours on the deserving' the other, to prevent a combination in the House of Peers, which might subvert the very monarchy itself."
There is a still higher authority, in the debates on the Regency Bin of 1788, for the exercise of the Royal prerogative, in case of any desperate confederacy to obstruct the measures of Govern- ment. Mr. PITT grounds his argument for the restriction, on the assumption, that no such confederacy was likely to be formed ; thus plainly admitting, that if it did, the prerogative ought to be allowed. free and unrestricted course, in order to put it down. He says- " Unless they [the Commons] had reason to expect a desperate confederacy and cabal to obstruct the public measures, lie saw no sort of inconvenie which could result from a temporary withholding from the Regent the po making Peers."
When Mr. PERCEVAL moved his Regency Bill in 1810, ne the same arguments were employed on both sides. In the Com- mons, the evil of a large creation having been alluded to, Mr. CANNING, who opposed the restrictions, asked- " If there be this danger in the unlimited power of creating Peers, the limit- ation, to be effectual, must be permanent. But to all such stretches of pre- rogative, the House well knows, that there is a limitation more operative than the provisions of a bill—more efficacious than any system of checks and balances—the control of public opinion."
Lord CARNARVON, then Lord PORCHESTER, and Sir SAMUEL ROMILLY, argued the question on the same principles. In the Upper House, Lord HOLLAND having contended, that the prerogatives of the Crown were a trust for the benefit of the People, and that any restriction of them were a violation of the rights of the People to have the Monarchy at all times " integral and un-. impaired;" Lord HARROWBY, in answer, said, that one great ob- ject of the prerogative was,
" To fortify that House by the accession of persons of high birth, great pos- sessions, or extensive influence, in order to preserve its relative importance to the other branch of the Legislature."
Lord HOLLAND had maintained
" The Prerogative to be necessary, in order to give the Crown a control over the deliberations of this House."
This also Lord HARROWBY felt compelled to admit.
" THAT CASES MIGHT OCCUR IN THE COURSE OF TIME, IN WHICH THE USE OF THE PREROGATIVE, FOR THAT OBJECT, MIGHT BE JUSTIFIED BY EX- TREME NECESSITY, HE WAS NOT DISPOSED TO DENY."
The resolution of the Marquis of LANSDOWNE,
" That the suspension of the power of granting Peerages, was a suspension of one of the most essential and constitutional prerogatives of the Crown;"
was lost by a majority of 6 only, in a House of 206, the Bishops voting in the majority. We shall give but one quotation more—a protest, signed by seven of the Peers who voted for the Marquis of LANSDOWNE'S re- solution. It runs thus- " Because we think ourselves called upon to protest in the most solemn manner against the principle of suspending, during his Majesty's indisposition, any of those lawful prerogatives of the Crown which the Constitution vests in the King, not for his personal benefit, but as a trust On behalf of the People; and to declare, that in our opinion, if such prerogatives are necessary, and advantageous to the People under the permanent government of a King, they are equally beneficial and more necessary under the temporary and precarious authority of a Regent, especially in a period of extensive warfare and great na- tional embarrassment."
Who were the Peers who signed this brief and conclusive docu- ment? Here are the names—CLARENCE, LAUDERDALE, HOL- LAND, ALBEMARLE, ERSKINE, ROSSLYN, SPENCER.
In the statements which we have submitted to our readers, cer- tain facts are established, which we shall now set forth very briefly.
1. The House of Lords has in all past time been subject to con- tinual changes : it has changed in respect of its powers, in respect of the character of its members, in respect of their number, not once, but many times. From the Conquest to the end of the thirteenth century, it exercised the sole legislative power ; from the latter period downward, it has shared its power with the Com- mons. The title of its members lay,.in the beginning, in the pos- session of certain lands ; their title has been made successively to depend on the King's letters, the King's writ, the votes of Extra- Parliamentary Peers, the provisions of an act of Parliament. In point of number, the House of Peers has been subject to altera- tions in the course of every reign, every Ministry, and nearly every year, from the earliest times of our ,constitutional history to the present. Instead of a fixed and definite aspect, it presents only a series of changes in substance and in form, in gross and in detail.
2. The power of the King to add to the number of the House of Peers, liable to no control or modification, has never been the subject of dispute; it has been in constant exercise from the first institution of Parliament until now. The proper and allowed oc- casions of exercising that prerogative, agreeably to the opinions of the greatest statesmen of the eighteenth and nineteenth centu- ries, are—the commencement of a new reign—the coming in of a new Ministry—the occurrence of such differences between the Peers and the House of Commons, as the dissolution of the latter is incapable of removing—the existence of any cabal or confederacy in the Lords for the purpose of opposing the King or obstructing the public business of the country. In all these cases, the extent of the creation is, by the common consent of practical statesmen, to be measured by no other gauge than the estimate which the Sovereign may have formed of its convenience or necessity. These facts admitted, it remains for those who argue against a creation of Peers at the present juncture, to show that there is something in it essentially different from the whole of the cases in which a creation has been declared to be proper and called for. The last House of Commons determined, by a majority of 1, that a Reform of Parliament was necessary. In order that this question might be more accurately decided, the Parliament was dissolved, and a new House of Commons returned. The result has been an addition of 136 to the former majority.
In the House of Peers, the majority against Reform, which had thus, a second time, been sanctioned by the Commons, was 41. The number of Peers who voted for the second reading was— Peers present, 128, proxies, 30; against it—Peers present, 150, proxies, 49. Since the division, 1 Peer, then a minor, has joined the Opposition; 1, a Bishop, has been added to the Ministry. The n bers, supposing no change of sentiment to have taken place, e absent Peers to be equally divided, will now stand—for , 159; against it, 199; majority, 40. If the Bill be allowed o into Committee, there the Proxies on each side being dropped, the numbers will stand—for, 129; against, 150; ma- jority, 21. There was a creation of Peers when the present King was crowned; one of the usual occasions of a new creation has thus been taken advantage of. There remain—the occasion of the Minister's coming into office, which has led as yet to the creation of only one Peer (Lord BROUGHAM, Chancellor), and the difference between the House of Lords and the House of Commons, which has led to none.
In 1784, Mr. Pirr, on coming into office, created 18 Peers; Lord SIDMOUTH, in 1801, created 13; Lord GRENVILLE, in 1806, created 11; Lord LIVERPOOL created 18 between 1812 and 1821, and in the latter year he created, on the occasion of the coronation of the late King; 16 more; Mr. CANNING was in office only three months, and he created 6 Peers; the Duke of WELLINGTON, at his acces- sion, created 9. With the exception of Lord GRENVILLE'S Ministry in 1806, the whole of these were Anti-Reform Ministers succeed- ing Anti-Reformers, and therefore the necessity for a creation was small; yet they all advised it, as a matter of custom and right. The distinction between a creation on a change of Ministers, and on the coronation of a new Sovereign, is plainly laid down in the practice of Lord LIVERPOOL. Earl GREY may, therefore, in the most strict conformity with precedent, use his power as Minister, to the same extent that it was used by Mr. PITT, by creating 18 Peers for his own personal support and that of his Cabinet.
There will then remain, against Reform, 22 in the House, 1 in Committee. Is the present irreconcilable difference between the two Houses such a one as WALPOLE—PITT—CA.NNING—HOL- MAND—HARROWBY—LANSDOWINTE—GaEv—every statesman of note or name; ancient or modern, admit to form a proper and legi- timate ground for the exercise of the Royal prerogative ? Those who are startled at the number which it may be neces- sary to create, should consider-1st, that hitherto no Peer has been created to support Reform; 2nd, that while the House of Peers, in respect of this question, has been stationary, the House of Com- mons has been uniformly progressive ; 3rd, that the number of the Peers to be created is no more than a numerical expression of the difference between the two Houses; 4th, that the true ground of regret is not the strong measure required for their conciliation, but the greatness of the difference between them ; 5th, that if the dif- ference were insignificant, any extraordinary means of overturning it might more justly be objected to; and, lastly, that in the pre- cise ratio of the magnitude of the difference, is the call for such extraordinary means imperative. We have gone on the assumption, that the sentiments of the Peers remain as they were in October last. It is not denied that, essentially, they do; but it is said, that the threat of a creation will produce a suppression, if not a change of them. We beg the persons who thus argue, to reflect for a moment, whether to frighten the Upper House into compliance with the wishes of the People,be not more degrading to their dignity, than even mobbing them into it woukt?—whether the terror of a creation hanging over their heads be-a:Imre respectable motive for voting, or abstain- ing from voting, than a riot at their door?—whether it be not in- fnutely better for their Lordships to be controlled by the votes and arguments of fifty gentlemen of character, intelligence, and for- tune, like themselves, than by an appeal to the basest of princi- ples—the fear efleSinga little influence or a little power?