HL Deb 20 July 1820 vol 2 cc569-74

The House being in a committee on the Irish Chancery bill,

Lord Redesdale

rose to move an amendment in the clause which enacts that no master of chancery in Ireland shall be qualified, after the 1st of August next, to sit or vote as a member of the House of Commons. He did not mean to quarrel with the principle of this enactment, but they all knew under what circumstances this clause had been introduced. He should move, as an amendment on the words "is or shall be," to omit the words "is or."

The Earl of Limerick

said, that the noble and learned lord did not attempt to controvert the principle on which the clause was founded, and it might therefore be fairly asked, why was it to be abandoned in the case of a learned gentleman (Mr. Ellis), in whose favour alone the amendment was suggested? It was remarkable that, in this case, the learned gentleman had disqualified himself, and, in an examination upon oath before the commissioners of inquiry, had represented that the duties imposed upon him by his office were numerous and important. It was also the custom in Ireland to associate masters in chancery with the court of delegates; and in truth they exercised a variety of functions, which, if attended to, would furnish active employment during ten months of the year. Now if the learned gentleman was desirous of signalizing himself in parliament, he had only to throw up the laborious office which he at present held. For his own part, he was much averse to the practice of law-officers engaging in pursuits of ambition in the other House of Parliament. This was too general in Ireland before the Union, and the consequence was, that high legal offices were too frequently the reward of subserviency and corruption. Fortunately, the system had been changed, and those offices were now filled by a set of men who were lawyers, and who were competent to discharge their duties with honour to themselves, and advantage to the country; but as often as judicial duties were mixed up with the pursuits of a politician, instances would occur in which the former would be neglected, and the latter attended to. He objected, therefore, to enlarging the sphere of this learned gentleman's action; and as to the observation that the clause would do injustice to his constituents, he could not see the hardship of leaving them the whole kingdom of Ireland to select from, with the exception of four masters in chancery; but, even though some hardship were to fall on the city of Dublin, the interests of five millions of people ought to be regarded as of paramount importance.

The Earl of Enniskillen

thought it unfair to make any new parliamentary regulation of this kind apply to a gentleman who was already elected. He disliked all ex post facto laws, and this was evidently a law of that description. With regard to what had been said of the interests of five millions of people, he wished that, as the noble earl loved them so well, he would favour them with more of his company.

Lord Holland

said, he had hardly ever met with a clause in any bill which so many reasons united to recommend. By the law, if not the custom, of parliament, masters in chancery were prohibited from sitting in either House, and a resolution to this effect had been passed in the reign of Charles 1st. In fact, still stronger reasons applied to the exclusion of Irish masters in chancery than to the exclusion of masters in chancery in this country. It might be somewhat irregular in him to notice it; but their lordships ought not to forget that, by leaving out this clause, they would risk the loss of the bill altogether. Some deference was due to the other House in a matter affecting its constitution and independence. It appeared to him that the gentleman in question could not be a good member of parliament, unless the people of Ireland were deprived of that diligent and effective discharge of his judicial functions for which he had hitherto been remarkable. The mode in which he came into parliament, by canvassing a great city, did not, he apprehended, accord well with the purity of the judicial character. It had been said that this was an ex post facto law: names had often a great effect, and particularly where there was a mixture of Latin in them. The noble earl who spoke last was against the admission of lawyers holding office; but then God forbid that he should have any thing to do with an ex post facto law. Now, it might be proper to remind the House how often they had passed disqualifying acts which had this effect. The act which was passed in 1782, excluding contractors, and the act disabling excisemen to vote, passed at the same time (and the Whigs, whatever might be said of them, had done many of these things), contained a similar provision, and left to individuals the option of giving up their office or their right. So again, with the laws for excluding Roman Catholics: they did not allow the Catholics who had already sat and voted in parliament to retain their scats, but at once imposed oaths contrary to their faith, and which necessarily led to their exclusion. The amendment seemed to him to be inconsistent; there were only two principles on which the persons in question could be disqualified; the one affecting the administration of justice, and the other the independence and purity of parliament. Both these were as much affected by the present case as they could be by any case that might occur hereafter. If, indeed, the clause enacted that a penalty should be imposed on masters of chancery, and payment of it was demanded from those who had already sat and voted, that would be what he should call an ex post facto law. The clause came recommended to them by high authority, and, what was whimsical enough, by that of the learned gentleman himself.

The Earl of Liverpool

wished to state the grounds upon which he should give his support to the amendment. He should not enter into the question whether this was, technically speaking, an ex post facto law; but the clause appeared to him manifestly unjust, and their lordships had to consider whether there existed such a state necessity as would induce them to commit this injustice. If it were true that it was against the law of parliament for masters in chancery to sit in the other House, the other candidate for the city of dublin might obtain his remedy in the usual course. One thing was certain—that masters in chancery had been accustomed to sit in parliament for the last 200 years; theirs, therefore, was an unquestionable right; and, if their lordships were disposed to take it away, let them at least do so either legislatively or judicially, but not in the manner proposed. He put it, however, to their lordships candour, whether, applying this law prospectively to future cases, they would make it reach also any body of men, or an individual under the peculiar circumstances of the one who had been so often alluded to, and who not only might have been ignorant that the law was applicable to them, but might have even supposed that its operation was just the reverse. Such a measure, he contended, could only be justified by a great case of state expediency or necessity; and, even then, they ought to be exceedingly cautious how they enacted it. He would undertake to say, that the many eminent men, holding the situations of masters in chancery, who had had seats in the other House, were as valuable members as ever sat in it. There was one additional consideration, which he was sure would demonstrate to their lordships the great injustice of this clause: he understood that the individual referred to had purchased his office under the act of parliament [Hear!]. It was not an illegal purchase, their lordships would observe; for he was allowed by the act to purchase, though he could not alienate the office: were they, then, going to deprive this individual of such an office, having certain legal prerogatives attached to it?

The Earl of Enniskillen

observed, that the gentleman alluded to was specially excepted by name, from the operation of the bill in the other House.

The Earl of Lauderdale

agreed that a very strong case of necessity should be made out; but as to the person's buying the office, that could make no difference in the determination of their lordships. It was pretty certain that the individual would never have bought the office unless he felt himself tolerably sure that he was capable of filling it; and he would try that question by the evidence of the gentleman himself. He had said that the business of an Irish master in Chancery would detain him in Dublin for ten months in every year. There was no difficulty, therefore, in supposing that, at the time of the purchase, he was aware of the duties, and thought himself qualified to perform them. Why was it now a hardship, then, that he should be required to yield the situation, seeing that, upon his own showing, the performance of its duties, and his attendance in England as a member of parliament, were incompatible and impossible? But it might be asked, why had not parliament made some legislative provision for this state of things before? To this the answer was, that parliament had never dreamt of the possibility of its happening, and never could have supposed that one man could discharge the duties of both situations.

Lord Holland

begged to observe, in explanation, that he had never said that a person's judicial integrity might be affected by his sitting in parliament; but he would say this—that the mode of getting returned for populous places was not that which was advantageous for the preservation, at any rate, of an appearance of judicial purity.

The Lord Chancellor

was almost afraid to trouble their lordships upon this subject; because, for whatever he might say on behalf of legal integrity and merit, their lordships perhaps would not, standing in the way he did before them, give him credit. But this he would say, that the descendants of those who had held high judicial situations in the country and whose posterity had seats in that House, had greatly distinguished themselves in their debates by a display of talents and eloquence which did honour both to parliament and themselves. He was not less sanguine of the future merits of the posterity those unfortunate individuals might leave who were the subjects of the present bill [A laugh]. He had had occasion, more than once since he had held the office of lord-chancellor, to express a wish that those masters whom he had appointed should not sit in parliament. But what would be the effects of such a clause as this? It would apply, upon the principle of incompatibility which had been so much relied on, not merely to the case of masters in Chancery, but, by virtue of it, they must turn out of the House of Commons his majesty's attorney and solicitor-general, all the king's sergeants, and a variety of others. It was really strange that he had never heard of this inconvenience, even from his noble and learned friends opposite, until the result of a particular election had been foreseen. Upon the point of incompatibility of duties, he would instance a very striking case, which might go the length of proving the fallaciousness of the argument—he meant that of one who had been a member of the other House, and an attendant upon this House, and would have been an ornament to any—sir Samuel Romilly. Every one knew the great variety of his professional avocations, and yet he was returned as representative for one of the most populous cities of the empire. But the same principle would go farther; for it would exclude from the House of Commons officers in the navy and army. His lordship concluded by protesting against the clause.

Lord Kenyon

said, he should oppose the clause.

The committee divided upon lord Redesdale's amendment; Contents, 22; Not-Contents, 10.