IRISH COURT OF CHANCERY BILL. (Hansard, 30 June 1820)

§ Sir J. Newport
said, he meant to move a clause in this bill, which he conceived of great importance. It was one which would prevent Irish masters in Chancery from sitting in parliament, while they held such office. The duties of a master in chancery in Ireland were such, that if in parliament, either the one or the other must be neglected [Hear!]. The public duties which devolved on a master in chancery, ought not to be neglected to favour the ambitious views of any individual. The right hon. baronet proceeded to quote various authorities, among others, the lord chancellor of Ireland and the master of the rolls, in support of his statement, that the public business of his office required every moment which an Irish master in chancery could by possibility devote to it. One master in chancery had stated, that the fees of his office had increased in the proportion of five and a half to one. But being asked whether there was a proportionate increase of business? he answered "Yes, where I was formerly employed for one hour, I am now employed four or five." The lord chancellor was of opinion, that all the witnesses in matters going before masters in chancery, ought to be examined, if it could be done without injury to public business, by the masters themselves, but this being found impossible, the examination devolved on other persons. He would add another piece of evidence which he held to be conclusive. On the examination of Mr. Ellis himself the following question was put to him:—"Can you state the particular time the duties of your office occupy?" Answer—"The duties of my office require a regular attendance for ten months in the year; and there is to be performed more or less business every day in the year, if attended to." Now then this officer declared that the duties of his office, if attended to, 126 would take up all his time; and it was clear that the faithful performance of those duties was incompatible with his attendance in that House as a representative. He thought the evidence was quite conclusive on the point; and he would under those circumstances, move "That it be an instruction to the committee, that they have power to receive a clause, providing against any roaster In the chancery of Ireland being elected into, or sitting or voting in the House of Commons so long as he shall hold such office."

Lord Castlreagh
said, he entirely concurred with the right hon. baronet in his conclusion. If the office of master in chancery was not a judicial office, it yet so nearly pertained to a judicial office, that any time devoted to other avocations, to the injury of the business of suitors, would operate as an infraction of the duty of that office. The grounds on which a master of chancery in England sat in that House were different from those on which an Irish master in chancery could sit there. An English master in chancery might sit in that House without any inconvenience to suitors, and without the neglect of the duties of his office. He had no objection whatever, therefore, to the general principle laid down; but he understood that an election was now pending for the city of Dublin, in which a master in chancery was one of the candidates, and he thought that the clause proposed ought not to operate as an ex post facto law. He however felt that it ought to operate against any person holding that office from being hereafter elected.

§ Sir John Newport
said, that if it was manifest that the duties of a master in chancery were incompatible with his attendance as a member of parliament, that officer ought not to be allowed to hold a seat in that House. Could any man doubt but that by his attendance in that House the duties of his office would be neglected? That officer was bound to attend ten months in the year in Dublin; he had sworn that it was necessary so to attend. Would any member attempt (if he took his seat in that House) to propose an address to the Crown to remove him? He saw no reason why the legislature in this instance should forego giving that protection to the suitors which they were clearly entitled to; he saw no reason why, in compliment to the officer in question, the business of the Court of Chancery should be delayed, or the suitors of that 127 court injured. In the event of the election of the officer in question, previous to the passing of the bill before the House, he might if he thought fit resign an office, the duties of which he could no longer discharge.

§ Mr. Shaw
said, that the clause proposed would operate as a great hardship on Mr. Ellis, who was at present a candidate for Dublin. The election would possibly be over before he could receive any information as to the proposed law. The hardship would be not merely on Mr. Ellis, but on the citizens of Dublin. The present contest was one of the most acrimonious and violent that had been remembered for a long time in that city. There was more of party spirit and personal hostility displayed than had been exhibited on any late contest. It would be a great misfortune to the electors if, after closing a contention of that kind, they should be driven to a new contest, which would possibly be carried on in the same way. Mr. Ellis, when he offered himself to the electors, had no notice of the clause now proposed; he thought, therefore, that he ought to be exempted.

§ Mr. Abercromby
begged to call the attention of the House to the subject upon which they were about to legislate. It had nothing to do with the Dublin election, but was in plain terms whether or no parliament would continue to afford suitors in the Irish Court of Chancery that protection to which the law had entitled them. Nobody had ventured to state that the office of a master in chancery and a member of parliament were compatible. The very gentleman whose case was supposed to be involved in the present consideration had himself given conclusive testimony upon that point. He had declared that the business of his office required his full attendance for ten months in the year. Could any man after such a declaration, and with a consciousness of the importance of the duties of such an office, require an exception to be made in favour of a gentleman who had himself shown the impossibility of making it with any sense of justice? The hon. gentleman opposite had asked the House, on behalf of the citizens of Dublin, not to accede to this clause. If he asked that on behalf of the citizens of Dublin, he (Mr. Abercromby) would ask for the clause on behalf of the whole people of Ireland, who, if it did not pass, would be deprived of 128 the performance of those duties which they had a right to require from a public officer. Were the people to be deprived of the benefit of having indispensable duties performed, merely because Mr. Ellis wished to gratify his ambition? To pass the clause would entail no individual hardship; for no master in chancery had been a member of parliament since the Union. As to the ex post facto operation complained of, he must say, that he thought the complaint a little out of place; for this bill was not now for the first time brought forward; it was a measure long in contemplation for the regulation of the Court of Chancery in Ireland, and this was the first time when his right hon. friend could have introduced the clause, which was now complained of as if it had been prematurely framed to meet a particular occasion. It would be a dereliction of their duty if the House did not agree to this clause.

§ Sir M. W. Ridley
could not help remarking upon the observation that this clause, if passed, would be productive of great inconvenience to the citizens of Dublin, by exposing them to a repetition of an election contest. To this he would answer, that there was no necessity whatever of their being so exposed; for if the election was concluded in favour of the gentleman alluded to, he could take his seat, and obviate all the inconveniences by the resignation of his office as master in chancery. To give him the option was no hardship upon him; he Could either retain the seat or the office; he could not expect that he or any other public officer would be permitted to retain a situation the duties of which he could no longer perform.

§ Mr. Fowell Buxton
begged to know from the noble lord, before he gave his vote, whether, if Mr. Ellis should be elected, the noble lord would advise his majesty to dismiss him from his office, as he had declared that it was incompetent for that officer at once to discharge the duties of his office and to sit in that House?

§ Mr. Canning
said, he understood his noble friend to say, that the instruction before the House ought not to have the effect of influencing the election now pending. If Mr. Ellis were elected, the effect of the instruction might be to negative the return. His noble friend did not say that a master in chancery should not be incompetent to sit or vote in parliament. 129 Mr. Ellis might go through the election, and if he succeeded, it would be fair to leave him the option of resigning his office; but, at all events, the election should be considered good.

§ Sir J. Newport
said, that the object of the clause was to prevent any person from being capable of sitting or voting in parliament so long as he continued to hold the office of master in chancery.

§ Mr. Canning
said, that in that case there was no difference of opinion.

§ Sir J. Newport
said, that the officer in question would not be allowed to sit or vote so long as he continued to hold his office.

§ Mr. Canning.
—But the election will be good.

§ Sir George Hill
said, that the effect of the instruction would be, to disqualify a gentleman from sitting in parliament, without any notice having been given to him of such a measure, and without any disqualifying law having previously existed. The object of the instruction, as explained by the right hon. baronet, was, to prevent Mr. Ellis from sitting or voting in that House [Cries of No, no!]. If he were wrong, he could be corrected, but he understood the resolution went to disqualify Mr. Ellis to sit or vote in that House, unless he gave up his office [Hear, hear!]. He would say that this was the first time pending an election of great expectation, that a measure was proposed in parliament to conclude that election. Was it the intention to dismiss Mr. Ellis, and to substitute Mr. Grattan in his place? Mr. Ellis was qualified in all respects to sit in that House. Extraordinary interest was excited at the election. Would the House disqualify an individual who might receive the favour of the citizens of Dublin? He considered such an act an outrage on the constitution, on fairness, and on candour.

§ Sir James Mackintosh
said, he was at a loss to think how gentlemen could reconcile to any respect for the constitution—to fairness—to candour, or to common sense, the idea of enabling a man to occupy two places, which by his own confession, were absolutely incompatible. It was said that parliament had not given notice to the learned gentleman of the present measure; true, but he had given notice to the parliament that he could not possibly sit in that House without neglecting his duties. The right hon. baronet had said that there was a novelty about the 130 measure. Yes, there was a novelty, in the first place, of disqualifying the present officer by his own testimony; the evidence out of his own mouth proving his in competency. In the second place, it was a novelty to see the friends of that gentleman maintain his office against his testimony. Those friends impeached his testimony in order to preserve his office. If his evidence was true, if it was true that the duties of his office must necessarily detain him in Dublin ten months out of the year, would the House endure the idea of permitting a person to sit amongst them holding a judical office, the duties of which, if they believed his oath, required ten months of his attendance in Ireland in each year. The right hon. baronet had used very hard words. He (sir James) had another taste—he would rather use hard arguments and soft words. The right hon. baronet had talked a great deal about the constitution. This was an extraordinary appeal, considering the line of argument he had taken. He had talked of the election as being interesting to the public. But what did he (sir James) know of the interest, the violence, or the feuds of any party in Dublin—what did he care about them? Was any one of them prepared, in order to satisfy any party in that country, to establish by his vote so shameful, or rather so shameless a principle? Would any one call upon parliament to permit a gentleman to sit in that House, whilst the most pressing, and he would say the most sacred duties of society disqualified him? It would be impossible, even if all the passion and all the spirit of an Irish election found its way into that House, that any party or any faction could so thwart its proceedings, or darken its views. He did not wish to speak harshly, but this he would say, that so absurd, and so monstrous, and so unconstitutional an exemption, could not possibly be tolerated in that assembly.

Lord Castlereagh
observed, that he understood there was but one opinion in the House, either as to the incompatibility of the two situations of master of chancery in Ireland and member of parliament, or as to the impropriety of disturbing an election now in progress. All that was desired was, that the individual now a candidate for the city of Dublin should beat liberty, if elected, to resign his office.

The Chancellor of the Exchequer
suggested, that the object of the clause would be more precisely marked if the words of 131 instruction to the committee were confined to "the sitting and voting" of a person holding the office of a master in chancery in Ireland.

Mr. Calcraft
thought that, although the right hon. gentleman's amendment might meet the circumstances of the case immediately in view, it would not provide a sufficient regulation for all future cases, in which the office in question was, to disqualify in the first instance.

Mr. Wynn
also observed, that the pending election would probably have terminated before notice was received in Dublin of the present resolution of the House. It should therefore, be made applicable to future cases.
The instruction was agreed to, and the House went into the committee.—On sir John Newport's proposing a clause to prevent any individual from being elected a member of parliament so long as he filled the office of master in chancery,

Colonel Barry
opposed it, because it appeared to him to be levelled at an individual. The right hon. baronet had thought proper, at the present moment, when it was probable the individual alluded to was actually a member of the House, to introduce a clause personally affecting that gentleman. He did not complain of the principle of the clause, but he thought that an ex-post facto regulation ought not to be admitted. If agreed to, it would stamp disgrace on the proceedings of the House; and, though he might stand alone, he would divide the committee on it.

§ Sir J. Newport
defended the clause. Mr. Ellis knew that he could not perform the double duties of master in chancery and member of parliament; why, therefore, did he set up for the representation of the city of Dublin? The present clause was forced upon them by his own act.

§ Mr. Daly
observed, that the bill which had passed this House last year, and was thrown out in the Lords, was without any such clause as that now proposed. This circumstance proved that it was an ex-post fasto law to affect Mr. Ellis. He said this without any personal feeling in Mr. Ellis's favour, for he would, with all his heart, go over to Dublin to vote for Mr. Grattan.

§ Dr. Phillimore
thought it would be a gross injustice to the suitors in chancery, if the same individual were allowed to act as master and member of parliament. The duties of a master in 132 chancery and of a member of that House were totally incompatible. What, then, did the House resolve? They resolved that the member for Dublin should have the option of choosing the one situation or the other; than which nothing could be more just.

Dr. Lushington
said, that Mr. Ellis being a master in chancery, had taken an oath faithfully to perform the duties of his office, to do which, according to his own evidence, it was necessary that he should be in Dublin during ten months in the year. They should not, by allowing Mr. Ellis to retain the two situations, put him under the temptation of neglecting the duty of the one or the other, which no honourable man would wish to be subjected to. Besides, were they to forget the public in this case? A master in chancery had important duties to perform; the management of bankrupts' affairs, &c. which required attendance from day to day; so that every hour he was absent in England was injurious, and might be ruinous to the suitors. If no such bill was before the House, he thought one should have been introduced to protect the chancery suitors of Ireland.

§ Mr. Nolan
considered the clause an ex post facto law, and an act of injustice of the deepest dye. Though Mr. Ellis had heavy duties to perform, his friends might consent to do them for him during his absence; besides, the months during which he was occupied might not be the time that parliament was sitting. It would hardly be tolerated, if this gentleman was in parliament, that a bill should be brought in to exclude him; yet he probably was by this time a member, so that the only difference was (and honourable gentlemen might make the most of it) that he was absent.

§ Mr. R. Martin
meant to vote for the clause, which did not disqualify this gentleman from sitting in the House of Commons, if that were his wish. According to his oath, he could not fulfil the duties of the two situations; and, therefore, it was necessary that one of them should be given up. If a precedent were allowed in this case, the four other masters might also be returned to serve in parliament, and thus the whole business of the court of chancery would be stopped.

Mr. Williams
said, if this clause went to exclude Mr. Ellis from the court of chancery, or from the House of Com- 133 mons, it would be unjust; but as it gave him his option to choose the one or the other situation, it was perfectly equitable. Though absent in person, Mr. Ellis was present, by his own testimony; and that testimony showed, that the two situations were wholly incompatible. If this clause were not agreed to, ministers themselves ought to say to Mr. Ellis, "the two situations are incompatible—you cannot hold them both; you must therefore make your election for one of them."

Colonel Barry
observed, that all the arguments had been addressed to the principle of the clause, and nothing had been said as to its being an ex post facto proceeding. He admitted that it was improper to unite the two situations; but he objected to the time when the measure was introduced. He wondered that the right hon. baronet had not thought of the incompatibility of the two situations in the last session of parliament. He had, however, only found it out now, when Mr. Ellis either was, or was likely to be, one of the members for Dublin. It should be recollected, that Mr. Ellis had bought his office at a time when it was legally saleable for 10,000l.

§ Sir J. Newport
said, the gentleman alluded to had purchased the office, under a special notification from lord chancellor Ponsonby, who felt the impropriety of the purchase or sale of such situations, that it was intended to alter the system. With respect to the charge alleged against him for introducing this provision now, he could only say, that it had all along been his intention to propose it, whenever the bill arrived at its present stage. If the House felt it necessary to except Mr. Ellis from the operation of the clause, he hoped government would provide for him in some manner, so as to enable him to give up the situation of master in chancery, that the suitors might not be injured by his absence.

§ Mr. Martin
said, that after Horne Tooke had been elected a member of that House, a bill had been passed which disqualified him.

§ Mr. Nolan
observed, that none of the great disqualification acts were allowed to operate until the ensuing session of parliament.

§ Sir J. Mackintosh
said, a manifest distinction existed between the present 134 clause and those general measures of disqualification which had been passed from an apprehension of some future possible inconvenience In those cases there could be no necessity to affect the actual holders of scats. But here the case was the reverse: it was not future inconvenience that was guarded against, but parliament had presented to it a case in which the holder of an office had declared that it was impossible that he could perform the duties of that office if he were a member of parliament, As to the allegation that the other masters might do the duty for Mr. Ellis, the argument of the hon. member for Galway could not be replied to; and, if there was one master in chancery more than was necessary, the House should immediately set about the work of reduction.

§ Mr. Wrottesley
said, a seat in parliament was a trust, not an office. It was, therefore, a question between Mr. Ellis and his constituents, because the lord chancellor of Ireland would see that business of Mr. Ellis's office was attended to. If the House took upon it to legislate in the case of every person returned to the House who might not be able to attend, they would be obliged in consistency to exclude many of their members who were generals in the army, and had commands abroad, for instance at the Cape and in India, so that they could not attend at all.

Mr. Baring
said, the learned gentlemen seemed to have forgotten that the office in question was one of permanent duty; whereas the avocations of the army and navy were not so. Officers were frequently enabled to attend to their duties in parliament, without interfering with professional matters; but Mr. Ellis's employment required attention from day to day. With respect to its being a mere question between his constituents and himself, he differed entirely from the learned gentleman. It did not follow, because his constituents were satisfied, that that House should also be satisfied; because there were important duties to be performed by that House which must be neglected if an individual resided in a distant part of the country.

§ Sir J. Yorke
supported the clause.

§ Lord Palmerston
said, that the argument of Mr. Wrottesley had not been answered. There was no effectual distinction between a command in the army 135 or navy and the office of Mr. Ellis, as far as attendance in parliament was concerned. Hitherto the House had proceeded on one principle of exclusion only, namely, that which was directed against the influence of the Crown. It was not on that principle that the admission of Mr. Ellis was opposed. They had to consider whether they would admit another principle of exclusion, namely, that a man should not be elected to serve in parliament when he had other occupations which might keep him absent. This principle might lead to an inconvenient extent, which might incapacitate any man for any sort of public or private business.

Mr. M. Fitzgerald
maintained, that the clause proposed by his right hon. friend was not liable to any of the objections which applied to a retrospective or ex post facto law with respect to Mr. Ellis, as it proposed only to enact a general principle, from which it was in the power of that gentleman to relieve himself if he should think proper. By the evidence of Mr. Ellis himself, it appeared that a master in chancery was necessarily occupied in the performance of his official duty for ten months in the year, and even liable to be called upon at times within the remaining period. How, then, was it possible for such an officer to perform his official duties and to attend to the business of that House?

Lord Castlereagh
said, that he was an advocate for the principle of the clause, upon the ground that attendance in parliament was incompatible with the duties of an office which required almost perpetual attention in Ireland. He was, indeed, an advocate for the clause upon the same ground that the judges were excluded from that House, which was not because they were supposed dependent upon the Crown, but because, from the pressure of their judicial engagements, the two situations were incompatible. Still he thought that this clause should not be retrospective with regard to any masters in chancery which might be elected previous to the passing of the act. But should the gentleman alluded to be returned, it would, of course, be competent to any member of that House to move an address to the throne for his removal from the office which he held in the court of chancery, and upon that address being presented it would be difficult, he thought, for any minister, with that gentleman's own evidence before him, to hesitate about 136 advising his majesty to comply with such an address.

§ Mr. Abercromby
supported the clause. The observations made on the other side, with regard to officers of the army and navy holding seats in that House, had, in his view, no analogy to the present case; for a seat in parliament was to such an officer but a secondary consideration, while a master in chancery, in becoming a member of that House, was but too likely to make that his primary object, through which, of course, his official business would be neglected.

§ Sir J. Newport
assured the committee that he had no personal motive whatever on this occasion, as he had the greatest personal respect for Mr. Ellis, and as he had mentioned to a friend of his, then in the House, before the death of Mr. Grattan, that it was his intention to move the insertion of a clause of this nature in the bill under consideration.

Mr. Foster
objected to the proposed attempt to defeat the wishes, and to interfere with the franchises of the people of Dublin. He called upon the committee to recollect the precedent in the case of Home Tooke, where the act excluding persons in holy orders from that House, specially provided for the exception of that gentleman during the existing parliament, on the ground that it should not be retrospective in its operation, although that act was actually brought forward in consequence of Mr. Tooke's election.

Mr. Macdonald
observed, that Mr. Tooke had no option, as he could not divest himself of his orders, and that he had no duty to perform elsewhere, by the neglect of which the public would suffer, while Mr. Ellis was in quite different circumstances, as he had a complete option.

Mr. Foster
remarked, that the object then was, to force Mr. Ellis to give up his office.

Mr. R. Smith
said, that Mr. Ellis had, by his own admission, such official business to discharge as rendered it impossible for him to attend his duty as a member of that House. Therefore, should that gentleman be returned, an address to the Crown ought to be voted for his removal from office, and if no other person would make the motion, he should himself feel it his duty to do so.