Proposition IX. Petition. See moned to Parliament as such Baron Buckhurst, and to vote as a Peer of Parliament by virtue of the said Barony. 15. It is, on the other hand, submitted and contended on the part of the Claimant, that he is entitled to the said dignity and honour of Baron Buckhurst of Buckhurst, and to the privileges and A pre-eminences to such dignity and honour belonging, notwithstanding his accession to the higher title and dignity of Earl De La Warr, and notwithstanding the clause in the said Letters Patent contained, which purports to shift the said Barony in the events therein mentioned; and the Claimant is advised, and contends, that the said B condition or shifting clause in the said Letters Patent contained, is repugnant to the general scope and intent of the said Letters Patent, creating the said Barony, and that such clause is not effectual to deprive the Claimant and his heirs male lawfully begotten and to be begotten, of his and their right to enjoy the said dignity and C honour of Baron Buckhurst of Buckhurst; and that, in fact, the said condition or shifting clause is not in accordance with the usual and accustomed form of Letters Patent granting the dignity and honour of a Peer of Parliament, and is wholly inoperative. E F 16. On the 28th day of March, 1876, the Claimant presented to D the Queen's Most Excellent Majesty his Petition stating in part, as, or to the purport or effect herein stated, and praying that Her Majesty would be graciously pleased now to determine and declare that the shifting clause contained in the Letters Patent, creating the title, dignity and honour of Baron Buckhurst of Buckhurst, in the county of Sussex, was and is repugnant to the general scope and intent of the said Letters Patent creating the said Barony, and was not valid and effectual to pass the said title, dignity and honour to the Petitioner's next brother, the said Mortimer Sackville West, on the death of the Petitioner's eldest brother Charles Richard Earl De La Warr, and on the accession of the Petitioner to the said Earldom, and that, Her Majesty would be graciously pleased now also to declare that, notwithstanding, the said shifting clause in the said Letters Patent contained, and notwithstanding that on the death of the Petitioner's said brother Charles Richard Earl De La Warr the G Petitioner succeeded to, and now enjoys, the higher dignity of Earl De La Warr, the said title, dignity and honour of Baron Buckhurst of Buckhurst in the County of Sussex, created by the said Letters Patent, together with the privileges and pre-eminences to the said dignity and honour belonging is, and are now vested in the H Petitioner and his heirs male lawfully begotten and to be begotten according to the tenor of the said Letters Patent, disregarding the said shifting clause therein contained. And that, if to Her Majesty it should seem fit, Her Majesty would also be pleased to declare that the said shifting clause in the said Letters Patent contained was, and is wholly inoperative, and to order that such clause be expunged from the said Letters Patent. The said Petition is printed A in the appendix hereto, page 15. 17. On the 29th day of March last the said Petition was referred to Her Majesty's Attorney General to consider thereof, and to report his opinion what might properly be done thereon, and on the 16th day of May last, Her Majesty's said Attorney General B made his report thereon, and recommended Her Most Gracious Majesty, should such be Her Majesty's Royal pleasure, to refer the further consideration of the said Petition to your Lordships' House, and the same has been referred to your Lordships' House accordingly. The said reference to the Attorney General and his report thereon C are printed in the appendix hereto, page 19. 18. On or about the 3rd day of April, 1876, the said Counterclaimant also presented his humble Petition to the Queen's Most Excellent Majesty, stating generally the facts as to the creation of the said Barony by virtue of the said Letters Patent, and averring D that on the succession of the Claimant to the dignity of Earl De La Warr, the title, honour and dignity of Lord Buckhurst of Buckhurst aforesaid, in conformity with the conditions contained in and made by the said Letters Patent devolved upon, and had now become vested in the said Counter-claimant, and the said Counter-claimant E by his said Petition most humbly prayed Her Majesty to be graciously pleased to admit his succession to, and to declare and adjudge that he was entitled to the said honour and dignity of Lord Buckhurst of Buckhurst, and should such be Her Most Gracious Majesty's pleasure to cause him to be summoned to Parliament, as such Lord F Buckhurst of Buckhurst. The Petition of the said Counter-claimant is printed in the Appendix hereto, page 21. 19. The Petition of the said Counter-claimant has been duly referred to Her Majesty's said Attorney General, who has made his report thereon, and recommended Her Most Gracious Majesty, should G such be Her Majesty's Royal pleasure, to refer the further consideration of the same to your Lordships' House, and the same has been referred to your Lordships' House accordingly. 20. It is submitted and contended on the part of the Claimant that the shifting clause or condition in the said Letters Patent con[46188] 3 tained, if it be capable of bearing the construction, contended for by the said Counter-claimant, is repugnant and invalid, and that Her Most Gracious Majesty by referring the said Petitions to the said Attorney-General, to be reported upon by him, has in fact left it to your Lordships to decide in a Committee of Privileges of your A Lordships' House, whether the said condition or shifting clause is or is not valid either wholly or in part, and generally as to the force and effect thereof. 21. It is further submitted and contended on the part of the Claimant, that, having regard to the constitutional principles B which govern cases of this nature, the condition or shifting clause in the said Letters Patent contained, ought not to be treated as having the effect attributed to it by the said Counter-claimant, and the Claimant is advised, and contends that if such a condition or shifting clause as the one now C in question should be held to have the force and effect attributed to it by the said Counter-claimant, there would by parity of reason be no objection to the insertion in future Letters Patent creating the dignity and honour of a Peerage in your Lordships' House, of a clause or condition by virtue of which the dignity and honour so D created might be made to shift or pass away from a member of your Lordships' House, in whom such dignity and honour was undoubtedly well vested, who had been duly summoned to and was then a member of your Lordship's House, and who had voted and was entitled to vote in your Lordship's House by virtue of the said dignity E and honour, and to devolve upon or become vested in some other person, either named or not named in the said Letters Patent, in the event of the then holder of the said dignity and honour either becoming seized of an estate of inheritance of a given annual value or ceasing to be so seized or becoming entitled to a baronetcy or other honour, whether of inheritance or creation, or failing to comply with a condition for residence for a certain fixed period in each year in a certain mansion, or dwelling-house, or becoming bankrupt, or making a composition with his creditors or not performing within some prescribed period some prescribed duty or doing G some prescribed act, or in many other events that might be suggested. It is submitted and contended on the part of the Claimant that the attempt to annex any such condition or shifting clause to the dignity and honour so to be created would be unusual, unconstitutional, and of none effect. F 22. It is further submitted and contended on the part of the H Claimant that no case can be found in the journals or records of your Lordships' House shewing that such a condition or shifting clause as the one now in question has ever been held by your Lordships' House to have the effect attributed to it by the said Counterclaimant. The only case which, as the Claimant believes, could be A referred to by the said Counter-claimant in support of his contention is that of the devolution of the dignity of the Dukedom of Cornwall, which dignity or honour, when a Prince of Wales succeeds to the Crown, passes immediately to the eldest son of such Prince of Wales, notwithstanding that the father of such B eldest son (namely, the Prince of Wales, so succeeding to the Crown) is still living; but it is submitted that there is no real analogy between that case and the present, for that by the very nature of the events, the Prince of Wales, on becoming the reigning Sovereign, ceases to be a Peer of the Realm, and a member of your C Lordships' House, and thereby opens the succession to the Dukedom of Cornwall to his eldest son. 23. It is further submitted and contended on the part of the Claimant that the calling up to your Lordships' House of the eldest son of a Peer in the lifetime of his father by the style or title of D some dignity vested in the father, is also not analagous in its effect to the operation of the condition or shifting clause contained in the Letters Patent now in question as insisted upon by the Counter-claimant, and that this act of the Crown in calling up such son into the dignity vested in his father, is not analagous to, or any recognition E of, the right of the Sovereign to insert in Letters Patent, creating the dignity of a Peer of Parliament, a clause, by the operation of which the dignity so created may be constantly liable to pass away and shift from the then holder of the dignity (who has been duly summoned to your Lordships' House, and who has voted as a Peer F of Parliament by virtue of the Peerage so created), and to vest in some other person who may be named in or designated by the said Letters Patent. 24. It may be averred by the Counter-claimant that in one other case of recent creation, namely, in that of the Countess of G Cromartie (Duchess of Sutherland) there is in the Letters Patent creating such dignity a special limitation or shifting clause, somewhat similar to the limitation or shifting clause now in question, but it is contended that the mere fact that such a limitation or shifting clause has been inserted in other Letters Patent of recent date does not afford any sufficient reason for assuming that the effect of the condition or shifting clause now under consideration is in the events which have happened, to cause the said Barony of II Buckhurst of Buckhurst to shift and pass away from the Claimant, and the heirs male of his body, and to become vested in the said Counter-claimant and the heirs male of his body. 66 A 25. The validity of the condition or shifting clause now under consideration, has already been the subject of grave doubt in your Lordships' House, and upon this point your Lordships are referred to the observations of three noble and learned members of your Lordships' House, in the case of "Sackville West v. Viscount Holmesdale," reported in the 4th volume of the L. R., Eng. and Ir. App., p. 543. At page 558 of the said report, Lord Hatherley (then Lord B Chancellor), in moving the judgment in your Lordships' House, is reported to have said "The patent contains a clause of very doubtful 'validity-a proviso for the shifting of the Barony if any holder of "the Barony became Earl De La Warr and this toties quoties." And again the late Lord Westbury, at page 569, is reported to have said, C "With respect to the shifting clause in the Letters Patent I cannot "but express my astonishment at finding such a proviso in Letters "Patent of nobility. It is I believe quite unprecedented. Whether “it is valid in law and capable of being made legally effective are questions upon which it is not for this House now to express an D opinion:" and again, at page 578, the Lord Chancellor (then Lord Cairns) is reported to have said "What judgment may hereafter be passed as to the validity of the shifting clause in the Peerage "should the events arise in which it might come into operation we "cannot anticipate." 66 E 26. It is further submitted and contended on behalf of the Claimant that your Lordship's House is not bound by the mere words of Letters Patent creating a peerage, but that for all purposes connected with the rights of members of your Lordships' House your Lordships will, as your Lordships' predecessors have in times F past done, maintain the rights and privileges of your Lordships' House and examine into the validity of such Letters Patent. Upon this branch of the case your Lordships are referred to the votes recorded in your Lordships' House in the case of the Earldom of Banbury in the year 1663, and to the Report of the Committee of your G Lordships' House in the Wensleydale Peerage case in the year 1856, and to the resolutions of your Lordships' House in the matter of such Peerage. 27. It is further submitted and contended on the part of the Claimant that, at all events during his own life, the said conditional limi- H tation or shifting clause in the said Letters Patent contained cannot |