Page images

argument that they might have been thought sufficient to repel the presumption of legitimacy, until sufficiently contradicted or explained by the claimant, or until intercourse between Earl William and his Countess had been proved as a fact, after the legal presumption of the fact had been overthrown, when the case was quite recent and the character of such circumstances must have been capable of scrutiny and explanation, with the utmost certainty and truth, it might fairly be considered that both law and reason would require them to be explained ; but we contend, that both reason and law must equally pronounce, that when time has rendered all proof impossible, it is sufficient that they are capable of explanation, since by facts they can no longer be explained. As to the King's message, he is now entitled to say, that Earl William, to maintain an untenable precedency which would have been lost to him, even for his life, if the birth of Earl Edward then only an infant, had been made public, might for that reason however dishonourably have concealed Edward and afterwards Nicholas during his life, which would terminate the motive; and that such concealment led to the first inquisition, corrected by the second, when the cause of the concealment was at an end, and that as both the inquisitions were equally supported by the oaths of witnesses, fraud at such a distance of time cannot justly be presumed: as to the conveyances he is entitled to say, at this distant period, that Earl William might have been pressed by incumbrances to alienate all his property, but which cannot now by any possibility be investigated; or that though he had had access to his Countess, he might have believed or suspected her commerce with Lord Vaux, and that his mind was thus aliened from his children; and as to the non-claim of the unalienable estate, he is fully entitled now to answer that the very objectors to his title make it the strength of their argument against it, that no opposition could in former times have been raised to it in the Courts, whose judgments depended as now upon the ultimate decision of the House of Lords, before which Court he repeatedly brought the claim of the Earldom, which he held by the very same title as the estate. Because we have already said, and we repeat, that the force and value of these explanations cannot now be put in the scale against the presumptions to which they are opposed; it is enough that they are possible, consistently with the facts on which the contrary presumptions are erected; since length of time, so unjustly objected against the claimant, has rendered it impossible to arrive by legal testimony at the facts.

Because in whatever manner these explanations ought to be received when opposed to the circumstances from whence the adverse presumptions have been derived, it cannot possibly be denied that all the circumstances so accumulated, or any circumstances whatsoever, would be laid prostrate before the proof of actual access; from which proof by length of time the claimant is also utterly cut off.

The circumstances relied on, even unexplained, could raise no other presumption than that of concealment; a presumption besides against the evidence in 1661, since the witnesses denied that they knew of Earl Nicholas being concealed or any cause of concealment, in which they might have been contradicted by hosts of living witnesses, if their testimony had been false.

Because concealment, even if it could now be justly presumed from circumstances against the proof at the original period, when it ought to have been established, could only repel the primary presumption of access, and could by no rule of law prevail against the fact of actual access; such a doctrine was never held nor even attributed to Lord Hale, nor to any other Judge; and although Earl Nicholas’ counsel were not called upon in 1661 to prove it before the Committee, yet as far as the evidence extended, access rather than the contrary ought now to be collected from it; since it was sworn by Mary Ogden, and not contradicted, that Earl William visited Lady Banbury. She said, I know not whether Earl William knew that his Countess lay in, but he visited her; and to another question she answered, that the child was carried ordinarily up and down the house. Surely these answers (giving credit to the witness for honesty) which cannot now be disputed, their meaning not being changed by further examination, must be taken to have meant such visits from which the witness supposed he might have known of the delivery, though she could not swear that he did; and if he might have known of the delivery, he might have seen the child which was carried publicly about the house.

Because against such evidence by living witnesses accepted for any reason as sufficient in 1661, we protest against the accumulation of the circumstances relied on at the distance of a century and a half to raise the presumption even of concealment, much less of non-access, when the claimant, from no laches of his own, but by the acts of the very Court which has now rejected his title, has been prevented from the possibility of proving the fact, which it is admitted, if proved, would totally destroy their force and effect. Because the resolution of the House of the 17th of March, 1692, that the petitioner Charles Knollys, who was the son and heir of the said Nicholas, had no right to the title of Earl of Banbury, was not a conclusive bar to the present claimant, inasmuch as it was not a claim to the inheritance of the Peerage brought forward by petition to the King, and referred by His Majesty to the House of Lords, according to the ancient forms and customs of Parliament, but a petition only by a person who considered himself as a Peer, to be tried as such upon an indictment for murder then depending against him, the rejection of which, though it might be conclusive against him personally as to the prayer of such petition, could not affect the succession so as to conclude his posterity. Because there is no precedent upon record of any claim of peerage having ever been decided except upon petition to the Crown, referred to the House of Peers, according to the ancient customs and forms of Parliament, and because the law of the land, which is the birthright of the subject and which cannot be overruled by any privilege of the Lords when not duly exercised, gave judgment against that resolution of the House; we do not question that it is the privilege of the House to decide conclusively upon claims of Peerage; we only contend that this privilege ought to be exercised according to the forms and customs of Parliament, and that the Crown, which is the fountain of that high dignity, has a constitutional claim that the forms and customs of Parliament should be preserved in the decisions of the Peers. Because the judgment of the Court of King's Bench, if erroneous, might have been reversed upon writ of error by the Lords themselves, the authority of whose resolution had been questioned by it; but although the House in the same temper which had unhappily characterised all its proceedings (at least as we view them) upon the same subject, irregularly questioned at its bar the Lord Chief Justice Holt and his brethren, concerning the reasons of their decision, it received no other answer from those truly great and eminent judges, than that their judgment was only open to be corrected by the forms of the law, and it stands at this day uncorrected and unreversed.

Because the Lords by their own authority, or by address to his Majesty, might have directed the Attorney General to bring the judgment before them for reversal, as unduly bringing their resolution into question.

Because if the resolution of the House in 1692 ought not to be held conclusive against the inheritance of this peerage, it follows that it never could become so by the resolution of 1697, which amounted to nothing more than that the House put that conclusive construction upon its own former proceeding; but if the Lords had no jurisdiction by the law of the land to come to the first resolution, the second, which was only to declare its construction, must of course fall to the ground. We acknowledge and will assert as Peers, the authority and conclusive character of all judgments of the House upon such a question, duly entertained ; but for that very reason, we feel ourselves bound upon our honours, to be the more jealous to confine them within the rules of law.

Because the resolutions in question of 1692 and 1697 were not considered as a conclusive bar to the claimant, either by the House in its preliminary proceedings, nor by the Committee in the debates leading to its final report. The late Attorney General, by his learned report to the King, not having considered the claim to be concluded, and his Majesty having referred the matter according to the forms and customs of Parliament, the House instead of making to his Majesty a similar communication to that made to King William in 1697, referred the petition of the claimant to the Lords' Committees for Privileges, heard his counsel and witnesses without even hinting any obstacle to a judgment according to the result of the evidence; and because even in the final debates, the resolutions were not much insisted upon as conclusive, if they could be shewn to be manifestly erroneous.

Because we agree to that mode of considering the resolutions, and found our dissent upon manifest error; and protest against the judgments of the House, for the reasons which we have recorded, at such unusual length; because an unreasoned dissent would have thrown no light upon the grounds of a decision of vital importance in its consequences to the inheritance of the Peerage; and because it would have been unworthy to have discussed it partially, so as to bring into discredit the justice of the House, whose decisions it is our duty to reverence and to support. Thomas Erskine, Lord Erskine. Edward, Duke of York. William Frederic, Duke of Gloucester. Augustus Frederic, Duke of Sussex. William Nelson, Earl Nelson. Richard Barrè Dunning, Lord Ashburton. Frederic Ponsonby, Lord Ponsonby (Earl of Bessborough). Francis Rawdon, Lord Hastings and Rawdon (Earl of Moira).

Henry Hood, Lord Hood of Catherington.
Thomas Dundas, Lord Dundas.

JUNE 21, 1813.

A number of resolutions, the purport of which was to confirm and extend the privileges of the East India Company, were introduced into the House of Commons by Lord Castlereagh and passed. They were subsequently forwarded to the Lords, in order that both Houses, in a conference to be held on them, might come to some agreement, and make them the basis of legislation. The issue of this joint action on the part of the two Houses was the East India Act, 53 George III, cap. 155. The subjoined protest was entered on the rejection of Lord Lansdowne's motion (by 49 to 14) to receive the report of the committee of the House on these resolutions, on that day three months.

1st, Because we think it manifest that these resolutions attempting to regulate unalterably for twenty years the government of the British territories in India, and the commerce of this country with the whole Eastern world, ought not to be adopted by Parliament, except after the maturest deliberation and fullest investigation of the subject.

2ndly, Because they have nevertheless been brought up to us only within these few days; several of them are entirely new to us; on many of the most important points which they embrace

« PreviousContinue »