The Wensleydale Peerage Case

JurisdictionEngland & Wales
Judgment Date25 February 1856
Date25 February 1856
CourtState Trial Proceedings
31 Hen. 8. c. 10. Precedence in the House of Lords
12 & 13 Will. 3. c. 2. Act of Settlement
WENSLEYDALE PEERAGE CASE. PROCEEDINGS IN THE HOUSE OF LORDS AND BEFORE THE COMMITTEE FOR PRIVILEGES AS TO THE PATENT PURPORTING TO CREATE BARON PARKE A BARON FOR LIFE, WITH A SEAT IN PARLIAMENT, February 7th-25th, 1856. (Reported in :5 H.L. 958 ; Special Report by Mac-queen ; and Hansard, vol. 140.) In January 1856, Letters Patent passed the Great Seal creating the Right Hon. Sir James Parke, Knight, Baron Wensleydale of Wensleydale "for and during the term of his natural life," and granting that he should be treated and reputed as a baron, and "have, hold, and possess a seat, place, and voice in the parliaments and public assemblies and councils " of the Crown in the United Kingdom " amongst other barons, as a baron of Parliament and public assemblies and councils," and enjoy all the rights, privileges, etc., to the degree of a baron belonging and which other barons of the United Kingdom have heretotore used and enjoyed, &c. Reference by the House of Lords to Committee for Privileges of patent creating baron for life with seat in Parliament. A copy of the patent having been laid on the table of the House of Lords, Lord LYNDHURST moved that it be referred to the Committee for Privileges to examine and consider the copy of the Letters Patent purporting to create the Right Hon. Sir James Parke a Baron of the United Kingdom for life, and to report thereon to the House. Content, 138. Not-Content, 105. Resolved in the affirmative. Rejection of motion to consult the Judges. On a later day it was moved to put the following questions to the Judges : (1) Is it in the power of the Crown to create by patent the dignity of a Baron of the United Kingdom for life ? (2) What rights and privileges does such a grant confer? Content, 111. Not-Content, 142. Resolved in the negative. Report of Committee against such patent conferring seat in Parliament confirmed by the House of Lords. In the Committee for Privileges, Lord LYNDHURST moved to report that neither the said Letters Patent, nor the said Letters Patent with the usual Writ of Summons issued in pursuance thereof, can entitle the grantee therein named to sit and vote in Parliament.(1) Earl GREY moved an amendment.(2) Resolved that the motion be carried and the amendment rejected. Content, 92. Not-Content, 57. The Committee having reported, it was resolved and adjudged (3) accordingly by the House of Lords without a division. (1) In the Berkeley Peerage claim, 8 H.L. 79, Lord Campbell, L.C., said, " It is cow fully settled that the law of the Peerage of England depends entirely on usage, both as to the power of the Crown, and as to any claim that may be made by a subject. It has been solemnly decided by your lordships, in the exercise of your unquestionable jurisdiction, that the Crown cannot create a peerage for life with the right to sit in this House, and the ratio decidendi was, that no instance could be adduced of a peer sitting in this House in right of a peerage granted for life only." See also Lord Hatherley in the Buckhurst Peerage, 2 App. Ca. at p. 36. (2) See below, p. 678. (3) See below, p. 716. " Whatever matter arises concerning either House of Parliament ought to be examined, discussed, and adjudged in that House to which it relates and not elsewhere." 1 Bla. Com. 163, citing 4 Inst. 15. And see Bradlaugh v. Gossett, 12 Q.B.D. 271. TABLE OF PRINCIPAL MATTERS. MOTION OF REFERENCE TO COMMITTEE FOR PRIVILEGES, p. 484. MOTION TO CONSULT THE JUDGES, p. 635. EVIDENCE LAID BEFORE THE COMMITTEE FOR PRIVILEGES, p. 645. DEBATE IN COMMITTEE ON THE PROPOSED REPORT, p. 634. PROCEEDINGS IN THE HOUSE OF LORDS ON THE REPORT FROM THE COMMITTEE FOR PRIVILEGES, p. 711. This case raised the question in the House of Lords, whether a patent purporting to create Sir James Parke a baron for life, under the title of Baron Wensleydale, with a place and voice in Parliament, could confer upon him the right to sit and vote in the House of Lords. (a) It was (a) The creation appears to have been made on the advice of the Lord Chancellor, Lord Cranworth, for the purpose of strengthening the appellate jurisdiction of the House of Lords 4811 Wensleydale Peerage Case, 1856. [4s2 contended in support of the patent that the Crown had the right to create peers for life, with seats in the House of Lords ; and a preliminary objection was taken that the House bad no jurisdiction in peerage cases without a reference from the Crown. On the other hand, it was contended that the Crown could not, by such a patent for life only, confer the right to sit and vote in the House of Lords; and that the House had jurisdiction as matter of privilege to see that it was properly constituted, and to exclude disqualified persons. It was further contended that, even supposing the patent not to confer the right to sit in the House of Lords, the writ which had been attacked iu the House of Commons by the Solicitor-General, Bethell, at the close of the previous session of Parliament, and described as "inferior to the lowest tribunal in what ought to he the accompaniments of a Court of Justice " (Hans., vol. 139, p. 2120 ; and see the subsequent debate in the Lords, ib., p. 2131). Lord Campbell, Life of Lord Lyndhurst, p. 193, says, " It was notorious that Cranworth and St. Leonards, who often sat without a third law lord, frequently differed, and sometimes left the decision to depend on the maxim preesumitur pro negante. If Brougham happened to be present, he was occupied with various matters that interested hint more than the appeal. Lord Campbell further states, Life of Lord Brougham, p. 582, " Lord Cranworth, without consulting anyone who could keep him straight, thought it would be his best course to have two new peers who would outvote, if not outweigh, St.Leonards, and make him independent of Brougham," and adds that Dr. Lnshington was unwilling " to stand the obloquy of being the first peer for life, but would not mind following in the wake as a second." Nash, Life of Lord Westbury, vol. i., p. 178, says that the offer was made successively to Sir W. Page-Wood (afterwards Lord Hatherley, L.C.), to Mr. Pemberton Leigh (afterwards Lord Kingsdown), and to Dr. Lushington. Greville, Memoirs, 3rd series, vol. 2, p. 51, says the question was never brought before the Cabinet. Lord Clarendon and Sir George Lewis knew nothing of it ; it was confined to the Chancellor, Granville and Palmerston. Martin, Life of the Prince Consort, vol. 3, p. 438, mentions that " the Prince Consort was represented as chief instigator of the measure, which he was represented to have devised with the ulterior object of introducing men of science, literature, and the arts into the House of Lords." See also Malmesbury, Memoirs of an ex-Minister, vol. 2, p. 41 ; Correspondence of J. W. Croker, vol. 3, p. 355. The question of life-peerages is discussed by Stubbs, "Constitutional History," 428; by Freeman, " Encyclopaedia Brittanica," art. Peerage ; May, Constitutional History of England, vol. 1,p. 290 (6th edit.) ; by Anson, Law and Custom of the Constitution, vol. 1, p. 188, who states, p. 190, that the balance of legal argument was strongly against the claim of the Crown ; and by Pike, History of the House of Lords, p. 369, &c. 91500. of summons to Parliament issued therewith entitled Lord Wensleydale to take his seat ; because, according to a recognised doctrine of peerage law, the receipt of such a writ, followed by a sitting under it in Parliament, would constitute a descendible peerage.(a) In answer it was urged that in this case the operation of the writ must be restricted by the words in the accompanying patent showing an intention to create a peerage for life only. In the result the House of Lords resolved that neither the patent, nor the patent with the writ, could confer the right to sit and vote in that House. The right of the Crown to confer the title of baron by patent for life only was not disputed, and was recognised in the resolution of the House permitting James, Baron Wensleydale to appear before the Committee for Privileges. (b) The further question whether other incidents of peerage, such as trial by peers, freedom from arrest, &c., would pass under such a patent did not arise for determination in these proceedings. On January 16th, 1856, Letters Patent passed the Great Seal creating the Right Hon. Sir James Parke, knight, formerly one of the Barons of the Exchequer a peer for life under the style of Baron Wensleydale. They are as follows: LETTERS PATENT. VICTORIA, by the Grace of God of the United Kingdom of Great Britain and Ireland, Queen, Defender of the faith : To all archbishops, dukes, marquesses, earls, viscounts, bishops, barons, knights, provosts, freemen, and all other our officers, ministers, and subjects whatsoever to whom these presents shall come, greeting : Know ye, that we, of our special grace, certain knowledge, and mere motion, have advanced, preferred, and created our right trusty and well-beloved counsellor, Sir James Parke, knight, late one of the Barons of our Court of Exchequer, to the state, degree, dignity, and honour of Baron Wensleydale of Wensleydale, in the North Hiding of our county of York, and him the said Sir James Parke, Baron Wensleydale of Wensleydale aforesaid, do by these presents create, advance, and prefer, and we have appointed, given, and granted, and by these presents, for us, our heirs and successors, do appoint, give, and grant unto him the said Sir James Parke the name, state, degree, stile, dignity, title, and honour of Baron Wensleydale of Wensleydale aforesaid ; to have and to hold the said name, state, degree, stile, dignity, title, and honour of Baron Wensleydale of Wensleydale aforesaid unto him the said Sir James Parke for and during the term of his natural life : Willing, and by these presents, granting, for our heirs and successors, that the said Sir James Parke may bear and...

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  • The Wensleydale Peerage Case
    • United Kingdom
    • House of Lords
    • 25 February 1856
    ...English Reports Citation: 10 E.R. 1181 House of LordsThe Wensleydale Peerage Mews' Dig. x. 305. S.C. 8 St. Tr. N.S. 479; cf. Hansard, Parl. Deb. vol. 140, p. 263; 2 Macq. 579. See Berkeley Peerage Case, 1861, 8 H.L. 79; Buckhurst Peerage. Case, 1876, 2 A.C. 36; Appellate Jurisdiction Acts, ......

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