LORDS IN THE COMMONS.
WE greatly trust that the active and able Member of Parliament whom we used to know as Lord Wolmer, and whom we must now call Lord Selborne, will take the opportunity of testing the right of a Member of the House of Commons who inherits the right to apply for a writ of summons to the Lords' House, not to apply for that writ, but to remain in the House to which he has been elected by a popular vote. Whether it is a good or a bad thing that a person who is in the present Lord Selborne's position should be able to remain in the House of Commons, it is at any rate to the public interest that the question should be cleared up once and for all. It is absurd that so important a matter should any longer be left in doubt. It is said, and, we trust, said truly, that the way in which the matter will be raised is as follows. Lord Selborne will vote on some ordinary question. Now, if he is a person disqualified by law to sit in the House of Commons, it will have been an illegal act to give that vote, and he will be liable to penalties. To test the legality of the act, a friendly suit will be brought for the penalties in a Court of Law. In this way, the subtle and intricate problems of law involved, will be argued out before, and decided by, a competent tribunal. This will be a far better way of raising the issue than an inquiry before a Committee of the House of Commons, when inevitably questions of policy will be mixed up with the questions of law. If the matter is fought out in the Queen's Bench rather than in a Committee-room, the chance of clear and sound decision will be far greater. We have on several former occasions put forth the argu- ments which, in our opinion, show that a Member of the House of Commons who succeeds to a peerage, may, if he chooses, remain in the Lower House. Our readers will, however, doubtless like to see them restated. The whole question depends upon what vacates a seat in the House of Commons. We know as a fact that besides bankruptcy and the acceptance of a post of profit under the Crown, ctc., the issue of a writ of summons to a Member of the House of Commons to sit in and be a Member of the House of Lords, causes that Member to vacate his seat. No Member vacates his seat till the Peer's writ is issued to him. In our opinion, then, the vacancy is caused by the issue of the Peer's writ, and is due to the simple and intelligible fact that a man cannot sit in two places at once. When a person in the Commons' House of Parliament is com- manded by the Sovereign to come and sit in the Lords' House of Parliament, he obeys, and so vacates his seat in the Lower House. Not a bit of it,' say the upholders of the opposite view. 'The issue of the Peer's writ has nothing whatever to do with the vacating of the seat. That really occurs the moment the ancestor is dead. A Peer is a person of blood so pure, that he cannot, as it were by the law of nature, endure to sit in the House of Commons. The status of peerage which he inherits, and which operates the instant his predecessor in title dies, is absolutely and entirely incompatible with a seat in the House of Commons. The issue of the Peer's writ is merely the best possible evidence that the status of a Peer has accrued. But naturally the House of Commons can only act upon the best possible evidence. It therefore does not declare a seat vacant until it has got the best possible evidence,—i.e., the issue of the Peer's writ. The argument derived from a man's inability to sit in two Houses is quite misleading, and has nothing to do with the matter. It is the status of nobility, the alteration in blood acquired by the Peer, and nothing else, which makes the successor ineligible for a seat in the House of Com- mons.' So runs the argument of those who declare that Lord Selborne cannot sit, even though he does not receive a writ of summons to sit in the House of Lords. In our opinion, this view of the case is entirely in- consistent with the origin and true position of the British Peerage. We hold that in the extraordinary pre- cautions taken by Parliament not to declare a seat vacant unless the Peer's writ has been issued is, as it were, em- bedded and embalmed the true view of the constitu- tional position of a Peer,—namely, that a Peer is a person summoned by writ to the great Council of the nation, and endowed by patent with the right to transmit to his heirs the right of applying for a like writ of summovs. Possibly, in theory, the Crown has a right to force the writ of summons on a Peer's heir, just as it has a right to make any Commoner a Peer against his will. As a matter of fact, however, the writ of summons to the House of Lords is never issued unless the person with a right to it first applies for it. For example, the present Lord Selborne will most certainly not receive a writ of summons to sit in the Lords' House, unless and until he applies for it to the Lord Chancellor, and sends with the applica- tion the usual proofs that he is the eldest son of the late Lord, and is lawfully entitled to its issue. Clearly, then, if the seat is not vacated till the writ is issued, Lord Selborne can remain in the House of Commons as long as ever he chooses, for it will not be issued to him till Is applies for it. It is most curious to notice how little direct evidence can be produced, either to show that what we may call the vacating by status is the true view, or, again, that the truth lies with the theory of vacating by membership of the House of Lords. Sir William Anson, a considerable authority, is very strongly in favour of the status view, and in his "Law of the Constitu- tion" does his best to repel the opposing theory. Yet he cannot adduce in its favour anything stronger or more convincing than the following :—" There are cases in recent times of Peers by descent holding offices in the Civil Service which are incompatible with a seat in either House. The Peer, in such cases, on succeeding to his peerage, does not apply for his writ of summons, and so avoids being disqualified for the office which he holds. Hence it has been suggested that succession to a peerage need not vacate a seat in the House of Commons unless the Peer apply for his writ. But the peerage is a status involving, among other things, liability to a summons, if it be the Queen's pleasure to issue the writ. It is the status, not the summons, which causes the disqualification." It will be noticed that Sir William Anson avoids the real point, which is,—What authority is there for holding that the mere status unencumbered by membership of the House of Lords, which is only attached to a Peer by the issue of the writ, vacates a seat in the Commons ? The mere status, as Sir William Anson shows, does not make a man vacate certain offices which cannot be held by a Member of the House of Lords. What is wanted is proof that the mere status is enough to vacate a seat in the House of Commons. It may be so, but clearly direct authority, not inference, is wanted. It appears to us that the argu- ments used by Mr. Milman, who, besides possessing a very intimate knowledge of the rules of the House, is a deep and accomplished student of history, are equally incon- clusive. Mr. Milman dealt with the matter as follows, in a statement which he prepared for the Vacating of Seats Committee last Session :—" There is a general consensus of opinion expressed by Speakers in and out of the Chair, and by eminent statesmen and law officers in debate, that the heir of a peerage succeeds to the dignity on the death of his father, and his seat is thereby vacated, though from prudential motives, unless there be undue delay, the writ for the new election ought not to be issued till the claim is admitted by the proper tribunal—viz., the House of Lords—and the writ of summons is issued. But if undue delay should occur, the House has claimed the right to issue the writ for the seat, which must therefore be vacant. Without suggesting that the obiter dicta of Speakers, or statements made in debate by eminent states- men and law officers, have the force of a declaration of the law, yet it must be admitted that responsible persons usually take some pains to obtain the best information before addressing the House, and some of these utterances bear the stamp of forethought and deliberation. The view, herein advocated as the historical one, has been held and expressed by a succession of Speakers, statesmen, and lawyers." In other words, Mr. Milman relies on a general belief expressed by the experts rather than on any positive declaration of opinion by any authority com- petent to decide the matter. No doubt Speaker Onslow is reported to have taken the status view very strongly, but the opinion he expressed would not be binding ; and though he was a great Speaker, he lived in an age when the true origin and nature of the peerage had been very little inquired into. We must admit that authoritative declarations are as difficult to find on the other side. There is, however, a passage in Lord Coke's Institutes which throws some light on the case, and which, as far as we know, has not yet been quoted.
We admit, however, that this is not conclusive. It runs as follows :—" And whosoever is not a lord of parliament and of the Lords' house, is of the House of the Commons, either in person, or by representation, partly coagmenta- tive, and partly representative." Now, we hold that a person in Lord Selborne's position is not yet a Lord of Parliament or of the Lords' House. Therefore he is of the Commons' House, and qualified to sit there. But where practically no authority can be shown on either side, the only plan is to fall back on common-sense. Now, the common-sense of the matter seems to us to be this. A man is, as Lord Coke noted, either a Member of the House of Lords in person, or a Member of the House of Commons in person or in representa- tion. But it is admitted on all hands that no one who has not received his writ of summons is a Member of the House of Lords. Therefore, all such persons who have not received writs of summons are in posse or in e,sse Members of the House of Commons. Whether they could, or could not, if they liked receive a writ of summons is beside the mark. Then, till Lord Selborne receives the writ of summons, he can remain a Member of the House of Commons. But there is no fear that Lord Selborne will receive the writ of summons unless he applies for it. Hence, there is no sort of reason that we can see why Lord Selborne should not remain as the repre- sentative of West Edinburgh. If it is said that his status of peerage prevents him sitting, let him put this question to the objector. If status absolutely disqualifies, why do not Peer-finders periodically search the House of Commons like the witch-finders among the Zulus ? Who knows that there are not at this moment concealed Peers in the Com- mons, men on whom the status has fallen, and who have a perfect right to the writ of summons, but who have kept quiet and never applied. Unless and until there is some means of hunting out these cone .aled Peers, we do not see why Lord Selborne should be debarred from the right to claim his writ twenty years hence instead of now. Surely the public notoriety of his succession to a peerage cannot in any way alter either the law or the facts.
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