HL Deb 16 June 1808 vol 11 cc901-7
Lord Grenville

adverted to the bill then before the house for renewing the Charter of the Bank of Ireland, and expressed his surprise that the former charter of the bank had not been laid before, the house. He would, however, shortly proceed to state the grounds of his intended motion. At the time of granting the charter of the bank of Ireland, in 1783, the penal laws against the catholics, that horrid code which all men now joined in condemning, had been happily repealed. There remained, however, disqualifications which prevented catholics from holding any office either in the state or in corporations. In the year 1793 the greater part of these disqualifications were repealed, and with the exception of a few offices, they were allowed to hold generally, offices in the state, and also in lay corporations. They were allowed to be colonels of regiments, governors of fortresses, and to rise to eminent stations in all the professions. The question here was, whether, in allowing them to hold any of these important offices, it was intended to exclude them from the office of governor or director of the bank of Ireland. There was a contrariety of opinion amongst men eminent in the law upon this subject, and thus a considerable doubt had arisen. By the act of 1793, Roman-catholics were allowed to hold the offices mentioned, notwithstanding any statute or bye-law; the word charter was not mentioned, and from this omission it was argued by some eminent men, that catholics being ex- cluded from the direction of the bank under the original charter, were not eligible under the operation of the act of 1793, in consequence of the word charter not being mentioned in that act. Other men of eminence in the law were of the contrary opinion, that the intention of the legislature to admit catholics was evident, and that they were eligible under that act, the omission of the word 'charter,' being of no consequence. This doubt was not remedied in the bill before the house, it being there left as it was. That house had the superior advantage of calling for the opinion of the Judges, and he thought this was a case in which that opinion ought to be called for. A doubt existed as to the law: and what was the proper course to take to solve that doubt, but to put a question to his majesty's Judges? This was so plain and obvious, that he was at a loss to anticipate any argument that could be urged against it. If it was said, it was of no importance, a question must surely be considered of importance which related to the privileges of four millions of his majesty's subjects. If it was said, there was no doubt, the doubt was acknowledged in the bill now before the house; and it was, in his opinion, of great importance that it should be set at rest, particularly when it was considered that this bill was to continue for 31 years. His lordship concluded by moving to refer a question to the Judges for their opinion as to the point, whether under the operation of the act of 1793, combined with other acts, and the Bank Charter act, Roman-catholics were eligible to hold and exercise the office of governor or director of the bank of Ireland.

Lord Hawkesbury

thought such a mode of proceeding as that advised by the noble baron wholly unprecedented, or at least highly inconsistent with the usual practice of the house. The bill before their lordships was strictly and directly a financial measure, and on such measures were it necessary to take the opinion of the Judges, the public business would be at a stand, or be protracted to an insufferable length of time. The point which the noble baron's motion involved was only an incidental one, and left the law as it now stood. He was therefore at a loss to conceive with what practical good effect his acceding to the noble baron's motion could be attended. It was open to a catholic, should the proprietors of the bank think proper to select him, to bring his case into a court of law, or to take the opinion of the Irish judges upon it in the exchequer court; or if their decision did not satisfy him, to bring his case before that house by writ of error. Then would be the moment to discuss and decide the point of law, and not on the present occasion. Otherwise it would be prejudging the question, now to take the opinion of the Judges upon it. Besides, were the Judges to say the catholics were eligible, would the house immediately proceed to alter the law? Was that the object which the motion of the noble baron had ultimately in view? If so, he did not imagine the house was prepared to go that length. For his part, he had often stated what were his sentiments with regard to the claims of the catholics, and he would now again repeat them. His opinion and determination was, to make his stand at the act of union; to maintain the laws as they stood at that period; to abide by the concessions that had been made up to that period; but not to accede to any other that had since been called for. Concession, in his opinion, had gone as far as was compatible with the security of the constitution in church and state; and nothing should bring him to endanger that security, by yielding to the further claims of the catholics.

The Duke of Norfolk

contended that the noble secretary was doing that which he himself was reprobating in others; for he was prejudging the question, by the tone he assumed in ultimately deciding on the claims of the catholics. If the Judges decided that the catholics were eligible, he would move that the law be altered on the subject, if his noble friend who made the motion should not think proper to do so.

The Earl of Lauderdale

thought it most extraordinary that the noble secretary of state should wish to keep the house in ignorance, as to what was the law. It was said of catholic priests, that they wished to keep their flocks in ignorance, and prevent them even from reading holy writ; and it might almost be supposed that the noble lord, in wishing to keep the house in ignorance, really cherished and acted upon the same principles. Those noble lords, however, who saw the greater danger in offices being held by catholics, must surely concur in endeavouring to ascertain the law upon this subject, as, if catholics were eligible to the direction of the Bank, the greatest to the state must in the opinion of those noble lords ensure. Instead of the plain and obvious way of ascertaining the law proposed by his noble friend, the noble secretary of state had recommended a law-suit; first, there was to be all the heat and animosity attendant upon a contested election, where catholic and protestant were directly opposed to each other; then a suit in a court of law; then an appeal to the exchequer chamber; and lastly, an appeal to that house, when the opinion of the Judges might be had: and thus there was to be a tedious litigation, for the purpose of arriving at the very point now proposed by his noble friend.

The Lord Chancellor

could not agree to ask the opinion of the Judges unless it was proposed to legislate upon that opinion. It was, besides, a matter of great doubt with him, whether, supposing such a question to be put, the Judges would not tell their lordships that they did not know what was meant by a Roman-catholic; they knew that persons were excluded from certain offices who did not take certain oaths, and it should not be disguised from the public, that this, after all, was the real question in all the discussions on the Catholic question; namely, whether persons who did not take certain oaths should be disqualified from holding certain offices? With respect to this subject he thought it right to declare his opinion, that it would be an event deeply calamitous if the protestant ascendancy were weakened. He held the opinion which had been held by Russel, Somers, lord Hardwicke, and other eminent men; that the support of the protestant church was intimately connected with the maintenance of our civil and religious liberties. He would not say, that under no circumstances ought further concessions to be made to the catholics; but he could not foresee the circumstances in which such concessions would be politic. It should never be forgotten, in considering this subject, that the guards which were necessary to maintain our religious liberties were not the less necessary for the support of our civil liberties. He could see no ground for putting this question to the Judges, unless it was first ascertained that some legislative proceeding was to be founded upon it, nor had he heard of any doubt upon the subject of the interpretation of the act.

Lord Holland

expressed his surprise that the noble and learned lord had declared opinions now which he did not do when the general question was under discussion, and when they could have been fairly met. He thought it most extraordinary with respect to this question, that where the law was not understood, it should be argued that they ought not to adopt means for the purpose of understanding it. This obscurity, which was now to be thrown into the science of legislation, reminded him of the metaphysics of Kant, and the poetry of Klopstock; of the former it was said, by one of his ardent admirers, that he wrote most sublimely, that he had written what no man ever understood, and what he himself did not understand. Klopstock wrote, when young, a poem entitled Creation, in which were some sublime passages, and some rather obscure; two students at Leipsic, meeting with one of these obscure passages, which they could not understand, at length agreed to ask Klopstock himself for an explanation; they met him at Hamburgh, and asked the question: his reply was. 'I dare say what I wrote was very good, and very sublime; I dare say I meant something, but I confess I cannot now tell what I did mean.' A similar obscurity was, it seemed, to be thrown over the point which it was now sought to explain.

Lord Harrowby

opposed putting a question to the Judges, on the ground that no practical good could be derived from it.

Earl Spencer

thought that in this instance there was clearly a doubt, and that the only way of getting rid of it was to have the opinion of the Judges.

Lord Mulgrave

saw no ground for putting the question, unless the house should previously determine to found on it some legislative proceeding.

The Earl of Rosslyn

thought it essentially desirable, that where doubts existed as to the construction of laws about to be continued, those doubts should be removed. No person could argue against the removal of the doubts existing in the case before their lordships, but those who thought it matter of perfect indifference whether catholics should or should not be directors of the bank of Ireland. To those who were adverse to the admission of catholics to the direction, and to those who were friendly to that admission, the removal of the doubts, confirmed by the very proviso of the present bill, for preserving to the catholics the full enjoyment of the rights granted in 1793, by the act of the Irish parliament, was matter of the greatest importance.

Lord Grenville

, in reply, observed, that notwithstanding the ingenuity of the noble lords who had opposed the proposition, they had failed in their reasoning. The arguments against it had, indeed, amounted to all that could have been expected against so clear and obvious a proposition; namely, nothing at all. He was now to learn, for the first time, that they were first to decide what should be law, and then to ask the Judges what was the law; they were first to enact, and then to ask for explanation. The noble and learned lord had said, that he had never heard of any doubt upon the subject; this was most extraordinary; they had heard in the course of the week of a want of communication amongst his majesty's ministers, and here it appeared, that a clause had been expressly inserted in the bill in consequence of this doubt, which stated the doubt, and the introduction of which had been assented to by one of the colleagues of the noble and learned lord, and yet the noble and learned lord had never heard of any doubt upon the subject! It seemed, however, that instead of now ascertaining what the law was, the parties interested in that explanation were to have a beautiful law-suit and a delicious doubt; they were to go into a court of law, and then they were to appeal to that house, where there were already upwards of one hundred appeals undecided, and then to wait till this question could be decided, when it might now be explained without any litigation! The noble and learned lord had talked of disguising the question respecting the catholics; it was perfectly well known that the catholics were excluded because they would not take certain oaths; but in this case, it was the catholics alone who were excluded, and the exclusion did not apply to any other persons. His lordship said, that the noble lord had contended, that the case might be decided in due course of law, and that the Judges might give their opinion upon that case when brought before the house, and if it should be thought adviseable at a future period to open the direction of the bank to catholics it might be done. With respect to the former part of the argument, it went to encourage litigation of the most troublesome and vexatious nature; and considering the mass of appeals now before the house, when could this case be decided? With respect to the latter part of the argument he, for one, was of opinion, that when this act should have once passed, no remedy could be applied to the evil in the course of thirty years, for which the charter was granted. On all these grounds, he was decidedly of opinion that a question ought to be proposed to the Judges respecting the law of the case.

The house then divided upon lord Grenville's motion:

Contents 16; Proxies 17–33
Not-contents 42; Proxies 52–94
Majority —61