SECRETARY TO THE MASTER OF THE ROLLS (IRELAND). (Hansard, 16 September 1831)

§ Mr. North
rose to present a Petition from Sir William Macmahon, the Master of the Rolls in Ireland, setting forth, amongst other matters, that there had been for many years a controversy between the Master of the Rolls and the Lord Chancellor respecting the appointment of the Secretary to the former Judge. The Master of the Rolls in the one country possessed as high and as extensive an authority as in the other; but from the time of James 1st to the Union, the office in Ireland became, in a great degree, a sinecure, and the Masters received letters of license to be absent; but the increase of Chancery business at that period rendered its revival necessary; and though the original patent gave the Master of the Rolls in Ireland the same power as that enjoyed by the Master of the Rolls in this country, yet the statute under which the revival was effected took no specific notice of the right to appoint a Secretary. In the year 1806, the late Mr. Curran was appointed to the office of the Master of the Rolls, and he appointed his own Secretary, but Lord Chancellor Ponsonby made an order that the Register of the Court of Chancery should not receive or file any petition which was not signed by his Lordship's Secretary, thus completely nullifying the appointment made by the Master of the Rolls. To this order Mr. Curran submitted. The present Master of the Rolls, however, was determined to assert his right to the appointment of his own Secretary, and, with the view of trying the right, appointed Mr. Shaw, the member for Dublin. This occurred during the chancellorship of Sir Anthony Hart, and that learned individual met the appointment in the same way as Mr. Ponsonby. The Master of the Rolls was thus precluded from trying the issue in the manner most usual in cases where a right of appointment is controverted, and was driven to the necessity of arguing his case by Counsel before the 94 Lord Chancellor, who decided against him. He had now, therefore, no alternative but to apply to the House, praying that an Act might be passed, removing the barrier which interposed between the petitioner and a legal ascertainment of his right by putting the question in a course of trial. The hon. Member concluded by moving that the petition be brought up.

§ Mr. Crampton
observed, that it was a case of some difficulty, and one on which the ablest and most learned lawyers might differ. The question which Sir Anthony Hart had to determine, on going over to Ireland, was, whether his own rights were to be conceded in favour of the Master of the Rolls. He (Mr. Crampton) did not intend, on that occasion to go into the law of the case; but he was bound to state, that in his opinion, Lord Chancellor Hart had taken into consideration the customs and usages of the place, which certainly did not require him to give up the fees of his own Secretary in favour of the Secretary of the Master of the Rolls. That was the question which Lord Chancellor Hart had to decide; whether he had decided it rightly or wrongly, he (Mr. Crampton) would not take upon himself to pronounce; but, at all events, this he would say, that it was not of that plain and easy decision that had been assumed by his hon. and learned friend. He admitted the antiquity of the office of the Master of the Rolls in Ireland; but, on the other hand, it was to be observed, that up to the beginning of the reign of George 3rd, such a person as Secretary of the Master of the Rolls, distinct from the Secretary of the Lord Chancellor, had never been heard of; and the first time that a claim to that effect was made by the Master of the Rolls, who, at that time, was Mr. Curran, the demand was immediately repudiated and put down by the Lord Chancellor Ponsonby. Another point that particularly weighed upon Sir Anthony Hart's mind was, that when a return of the fees of his office was required from Sir William M'Mahon in 1821, he made no mention whatever of a separate Secretary of his own, or of his fees. With respect to Lord Plunkett, he would not take on himself to say what would be his decision on the case, should it come under his notice; but at all events he might remark, that the Lord Chancellor had no power of his own to reverse the decision, till it was legally brought before 95 him by one of the parties in the shape of a rehearing; and that had not been done; so that, at present, of course, the two previous judicial orders of Lord Ponsonby and Sir Anthony Hart remained as they did. With respect to arbitration, he thought that it would be highly indecorous to refer the decisions of those who had been the highest law authorities of the country to a subsequent arbitration. As the question now stood, he thought that the only way of carrying it further would be, by a distinct legislative enactment; for he did not see how Lord Plunkett could with any decency take on himself to reverse the decrees of two of his predecessors on this subject.

Mr. O'Connell
said, the whole question was simply this:—The Master of the Rolls claimed a privilege which the Lord Chancellor denied; then, if this was the case, why was it not tried at law, and so settled? Because the Lord Chancellor, by his order, put a veto upon it. Surely that was not a right state of things—and yet that, if they talked for ever, was the whole state of the case. Having investigated this question in his judicial capacity as a Member of Parliament, he was bound to say, that in his own mind he had not the slightest doubt that the Master of the Rolls possessed the right which he claimed. He admitted that the Master of the Rolls had acted injudiciously in suffering his right to lie dormant for so many years; but that was accounted for in the petition on the score of delicacy; and though a man's duty—and this was one—ought not to have been sacrificed to motives of delicacy, still it was a feeling that demanded respect. He thought that the hon. and learned Gentleman (Mr. Crampton), in admitting that the Master of the Rolls' office was one of prescription, had admitted the whole of his case.

Mr. James L. Knight
thought, that the question of the Master of the Rolls' right on this point hardly admitted of a doubt; and he said this after having looked into all the papers on the subject. The question was one of importance to the public, because the attendance of the Lord Chancellor's Secretary, or his deputy, in the Rolls Court being very irregular, it frequently happened that the Court was actually obliged to stand still. He trusted, therefore, that the House would consider this as a case which called for legislative interference.

Mr. Cutlar Fergusson
said, he did not understand that his hon. and learned friend, the Solicitor General for Ireland had resisted the prayer of the petition. His was undoubtedly a difficult and painful situation, but he had acted prudently. For his own part, he had formed a decided opinion upon the merits of the case, and he was bound to say, he had not a doubt that the Master of the Rolls, as the independent Judge of an independent Court, ought to appoint his own Secretary. The present state of things, by which he was deprived of that right, ought to endure no longer.

Sir Robert Peel
thought, that the House was agreed as to the fact, that the Master of the Rolls ought to be allowed to try the right. The Master of the Rolls did not ask the House to give any opinion on his right, but only that he might be enabled to try it.

§ Mr. Serjeant Wilde
hoped, that the present Lord Chancellor would co-operate with the Master of the Rolls to have this question investigated. He was, however, strongly inclined to believe that the right of appointment rested with the Master of the Rolls.

§ Mr. Lefroy
said, the ground of complaint was, that Sir Anthony Hart had decided a case in which he was himself interested. This was against all the rules of dispensing justice. In saying this, he knew if any person could deserve to be trusted with such power, it was Sir Anthony Hart, than whom a more high-minded and upright Judge never sat upon the Bench. He rejoiced that the petition had been brought forward, and hoped the parties chiefly interested would come to some agreement, so that there should be no necessity for the House interfering.

§ Sir Charles Wetherell
said, that it would be no difficult thing to put the question in a shape to have it decided. It might be taken before the Privy Council for decision; but what he would suggest was, that it should be placed in a train of legal investigation by the parties, without the House interfering in the affair.

§ Mr. John Campbell
thought, from the character of the noble Lord who was now Lord Chancellor of Ireland, that he would at once yield the point without carrying the case to trial.

§ Mr. Shaw,
in support of the petition, said, that the reason why the Lord Chancellor of Ireland had, up to 1801, exe- 97 cuted all the functions of the Master of the Rolls was, not that there was no such officer, as had been asserted, but that he generally resided in England, under a constantly renewed license of leave, it being considered more a political than a legal appointment.