VIII. A.D. 1853. peer of the realm has a right, when he deems it necessary, to de- CHAP. mand an audience of the Sovereign, and to tender his advice respecting public affairs. In the framing of laws, it is his duty to act according to the deliberate result of his judgment and conscience, uninfluenced, as far as possible, by other considerations, and least of all by those of a pecuniary nature. He acts judicially, not merely in the appellate jurisdiction of the House, but also in the various matters usually referred to Committees, in which the strictest independence is to be observed, and all foreign influence of every description to be carefully avoided. Such is the position, and such the duties, of a peer of the realm; and it follows that any application or disposition of property, that has a tendency to interfere with the proper and faithful discharge of these duties, must be at variance with the public good, and consequently illegal and void. It is true that creations of peers and promotions in the peerage emanate from the Crown; and the respect we entertain for the Sovereign will not allow us to suppose that, in the exercise of this or any other prerogative, he can act otherwise than according to the best and purest motives. But we all know that, practically, this power is exercised according to the advice of the Minister-that the Crown rarely exercises it except at his suggestion, and on his recommendation; and, further, that these honours are usually granted, except in cases of extraordinary merit or distinguished public services, to the partisans and supporters of the administration for the time being, and seldom to its opponents. This is obvious to all, and confirmed by every day's experience. What, then, would be the practical result of this state of things with reference to the proviso now under consideration? If an estate, in this case of great extent and value, is made to depend upon a creation or promotion in the peerage, is it reasonable to suppose-speaking generally (for we must so consider the subject), and without reference to particular individuals that such a state of things would not have at least a tendency to lead the party thus interested to act, and without much inquiry, in accordance with those who could insure the permanence of the estate to his descendants, to induce him to support their views and measures, without any very scrutinising regard as to their effect or propriety, and thus to affect that free agency which it is a duty, as far as possible, to keep unimpaired? That there may be exceptions-honourable exceptions-to such an influence I do not mean to doubt. There may also be individuals who, from the dread of being supposed to be swayed by such motives, might adopt the opposite course, which would also be liable to objection. But, taking CHAP. A.D. 1853. mankind as we find them, we could not, without wilfully closing our eyes and discarding all the results of our observation and experience, come to the conclusion that such a position would not have a tendency, and, in some cases at least, a strong tendency, to produce the result which I have stated, viz.: to fetter the free agency of the party in the performance of the important duties incident to his position as a member of the peerage; and it follows, I think, that a proviso or condition which has a tendency to produce such results must be at variance with the public good and general welfare. It is admitted that any contract or engagement having a tendency, however slight, to affect the administration of justice, is illegal and void. The character of the Judge, however upright and pure, does not vary the case. Νο less strong must be the principle where applied to the important duties of legislation and to those judicial duties of the peerage upon which so many and vast interests depend. In the decision already adverted to, as to the insurance of the wages of a seaman, the only principle upon which it proceeded was that such a practice, if permitted, would tend to relax his exertions for the safety of the ship, and thus affect the proper performance of his duty, in the faithful and active discharge of which the public interest is concerned; and so in other instances which have been mentioned, and to which it is not necessary more particularly to refer. Each case must, as I have already mentioned, be decided upon its own circumstances, as applied to the established rule of law regarding the public interest and welfare; or, to use the words already quoted of Lord Hardwicke, 'upon political arguments in the fullest sense of the word, as they concern the government of a nation.' It is true, and cannot be disguised, that other motives, such as love of power, eagerness for office, &c., may, and undoubtedly do, more or less influence the conduct of men in the performance of these various and important duties. But if cases exist which are beyond the reach of the law, they afford no reason why, when a further influence is attempted to be created by an unusual disposition of property, and courts of justice are called upon to give effect to such disposition, they should not refuse to give it their sanction. The question then is, whether a proviso, such as we are considering, would have, if acted upon, a tendency to influence improperly the performance of those duties to which I have referred. I think it would have such an influence, and I consider it, therefore, to be against the public good, and consequently illegal and void." Lord Brougham, Lord Truro, and Lord St. Leonards con curred, and the decree was reversed,-Lord Cranworth retaining his former opinion. Not being able to attend during the argument, I took no part in the decision, but I cannot help thinking that those who pronounced it were legislating rather than administering the existing law. In this country the power of disposing of property by will is carried to a useless and mischievous length, and such a fantastical shifting of property on contingencies from one family to another, as the Earl of Bridgewater proposed, ought not to be permitted; but I can see no illegality in the condition, and it would be vesting a very dangerous power in Courts of Justice if they were allowed to adjudge illegal and void all contracts and all dispositions of property by will which, as they fancy, are inexpedient and ought to be forbidden.* * Perhaps I cannot consider the question impartially, having given the same opinion when at the bar in the lifetime of Lord Alford; but in this opinion Pemberton Leigh, now Lord Kingsdown, and several very eminent lawyers then consulted, unanimously joined. CHAP. VIII. A.D. 1833. CHAPTER IX. IX. Session of 1854. 1854 TO THE AUTUMN OF 1858. CHAP. IN the Session of 1854 Lyndhurst detached himself from the Derbyite party, who declined to express any opinion upon the policy of our protracted negotiation with Russia, till the result could be more distinctly known, and he resolutely urged the Aberdeen Government to act with more vigour and decision. Speaking of the papers which had been laid before the House relating to this subject, he said;— "They will be found to afford a lively picture of the shuffling, evasive, and (if I might apply such terms to persons in such exalted stations, I would say) truckling, and mendacious diplomacy of the Court of St. Petersburgh." Russian War. He opposes my Foreign Intercourse Bill. Ministers having declared that a change of territorial boundary should be no object of the war, he admonished them that the status quo would not content the nation. He said: "It has become absolutely necessary that a change should take place at the mouth of the Danube-a cession of territory there is required for securing that most important, and I may add necessary object, on which so much reliance is placed by Austria and Germany,—namely the free and uninterrupted navigation of this great river." this warning Europe may be indebted for the important cession of territory on the left bank of the Danube, which was insisted upon and obtained by the Peace of Paris in 1856. To In the course of this session I had a little specimen of the incurable lubricity of my octogenarian friend, and his readiness to make any sacrifice of consistency for the purpose of gaining his end,-whatever that end may be. He cared * 136 Hansard, 311. IX. no longer about place or preferment, but he was now as eager CHAP. to gain applause or oratory, as he had once been to secure the Great Seal. On account of a very foolish address, carried A.D. 1854. over by the Lord Mayor and merchants of London to Louis Napoleon, after the coup d'état which made him Emperor, and a mischievous, as well as ludicrous deputation of Quakers, who, under pretence of being peacemongers, went to pay homage to the Emperor Nicholas at St. Petersburgh, and to persuade him that he might do what he liked with Turkey, without any danger of English interference, I laid a Bill on the table of the House of Lords, to prohibit the subjects of this country from having any intercourse with foreign governments on public affairs, unless with the sanction of the Crown. I had, as a precedent an Act of the American Congress, and for the principle I had the high authority of Mr. Burke, in denouncing as treasonable the mission by Mr. Fox of Mr. Adair to the Empress Catherine, at the time of the Russian armament. Lyndhurst gave me to understand that he would warmly support me, and I make no doubt that he sincerely intended to do so. But a strong opposition to the Bill springing up from Lord Shaftesbury, Lord Roden, and others, who contended that it would prevent them from protecting converts to Protestantism in Roman Catholic countries, "the old man eloquent " could not resist the temptation of gaining popularity by leading the attack. "Everybody knows," said he, "that my noble and learned friend himself is such an avowed and unflinching advocate for freedom of discussion in religious matters, that there is no danger of his intentions being misinterpreted; otherwise I have no doubt it would be supposed that the author of such a bill entertained some insidious design hostile to the religious liberty of the Roman Catholics. Again, an act of injustice and cruelty has lately been committed by the Tuscan Government on two of its own subjects, found guilty of reading a translation of the Holy Gospels. Deputations from different Protestant States appeared at Florence for the purpose of remonstrating against this oppression; one deputation, headed by a noble Earl, a member of this House, distinguished for his strong Protestant feeling, joined in the pious effort" (Hear, hear). Lyndhurst continued, turning up his eyes to heaven, "Does my noble |