HL Deb 11 August 1834 vol 25 cc1133-43
The Duke of Cumberland

rose to present a petition from the Lord Mayor, Sheriffs, and Commonalty of Dublin, on the present awful state of affairs, especially with reference to the Protestant Church. It was so respectfully worded, and contained matter of so much importance, that he wished it to be read at length. It was impossible for any man to see without feelings of pain the unfortunate situation in which the Protestant Church in Ireland was now placed, especially when they looked at the events which had recently occurred, as well as those that were in progress. Their Lordships must be aware that during the last Session of Parliament a measure was brought forward and carried by his Majesty's Government for the reduction of a number of Irish bishoprics. Nothing could have created greater alarm in that country than such a proposition; and he was certain that noble Lords on that side of the House would have resisted the measure from beginning to end, had they not been told by Ministers that it would be a final arrangement. Such, however, had not been the case. He was perfectly aware, that when the noble Earl late at the head of his Majesty's Government (and whom unfortunately, he did not then see in his place) made that statement, he did so without anticipating circumstances which had afterwards occurred, and which appeared to have occasioned a change in his opinion. Although he had differed from the noble Earl during the whole of his political life, still he trusted that there never had been any unpleasant personal feeling between that noble Earl and himself. He believed that that noble Earl, however he might have erred in opinion, meant well, and he was bound to say that no man deplored the circumstances which took place when he quitted office—that no man more regretted the manner in which that noble Earl had been treated—than the individual who then addressed their Lordships. Therefore, he hoped it never would be said that personal feeling had any effect in shaping the observations which he now conceived it to be his duty to make. Certain it was, that the noble Earl had declared the measure to which he had alluded to be final, and the noble Earl had thereby induced many of his noble friends, from whose opinion he had on that occasion dissented, to coincide with the noble Earl in carrying that measure. This had now passed by, and it was not for him to blame the course which had then been taken, although it was contrary to his feelings and his wishes. But the Government was not satisfied with that which was called a final arrangement. They had brought forward in the most extraordinary manner (their Lordships would allow him to say so), a few weeks ago, a measure of a most singular description—namely the commission, called the Ecclesiastical Commission. He would not enter into the manner in which that Commission was appointed, because there were circumstances connected with it more extraordinary than anything which he recollected in modern times. But he would ask, what was this Commission for? It was not merely to investigate into the amount of all Church property, but to give a census of the population of Ireland, in every county, city, town, village, and parish. It was neither more nor less than a measure to count the heads of Protestants, Dissenters, and Catholics, throughout Ireland. Was that the way to pacify Ireland, or to satisfy the loyal Protestants of that unfortunate country? Was it not, on the contrary, throwing a fire-brand into that country? Was it not calculated to set one sect more violently against another than was the case at any former time? It was true, and he was at the time most happy to hear, that the noble and learned Lord on the Woolsack had stated in that House, on a former evening, that he never would be a party to allow one farthing of the surplus revenues of the Church, if there should be a surplus, to be appropriated to any other than Protestant purposes. The noble Earl then at the head of the Government made the same declaration, and he trusted that the House would be gratified with a similar declaration from the noble Viscount now filling that situation. But, notwithstanding all that, their Lordships were to have another measure proposed to them that night, by which the poor clergy of Ireland were to be deprived of two-fifths of their just and lawful property. He would not then enter further into that measure, as he should have another opportunity of doing so. Taking all these things into consideration, he confessed that he had no confidence in his Majesty's Government, and whatever personal respect he might feel towards them, he must say, that he should deceive them and deceive the country, if he did not say that in his opinion they were not friends to the Protestant Church of the country. He knew that they had professed very different sentiments; but words were one thing, and actions another. He would not have troubled the House so much at length, but having been intrusted with such important petitions, he thought he should not have discharged his duty had he abstained from making a few observations. He had therefore declared his opinion boldly, openly, and fearlessly.

The Lord Chancellor

said the illustrious Duke had correctly noticed the observations which had fallen from him on a former occasion, with one exception. He had stated, that he would not expend one farthing of surplus, if there were a surplus of Church revenue, for any except Ecclesiastical and Protestant purposes. Now he had spoken of Protestant purposes in contradistinction to devoting any part of it, be it ever so small, to the support of a Roman Catholic hierarchy. When he spoke of Ecclesiastical and Protestant purposes, it was to prevent its being supposed that he contemplated giving assistance to a Roman Catholic hierarchy at the expense of the Protestant Church. That, however, occurred in another part of his argument. He had stated, most distinctly, that, whether there would be any surplus to take, or whether, on the other hand, the Church might not want some additional support, they must wait, to ascertain the fact, until the result of the inquiry which had been set on foot was known. If it then happened, he had observed, that there was a surplus unappropriated, it should first and foremost, before anything and everything else, be applied to ecclesiastical purposes: the wants of the Church, he felt, must first be supplied. He had followed that up by stating, that those wants being provided for, any residue should be appropriated to a purpose which though not strictly ecclesiastical, was yet connected with the welfare of the Established Church—namely, the affording education on the principles of the Established Church. Further than that he had not gone; and he had stated that every controversy of this kind was premature, because the question might never arise, and there was no wisdom in a practical Legislature discussing hypothetical cases.

The Duke of Cumberland

said, the noble and learned Lord had borne out his statement, which was, that the noble and learned Lord had declared, that whatever surplus remained, after providing for the Church, should be appropriated to Protestant purposes.

Lord Duncannon

could not allow a misrepresentation of the opinions of himself and colleagues to pass without giving it a flat denial. The illustrious Duke had misstated the objects of the Bill to be read a second time that night. It was not intended, by that measure, to deprive the Irish clergy of two-fifths of their income. He would not go into the merits of the Bill then, but he could not hear himself and his colleagues designated as enemies to the Church, without stating in explicit terms, that he considered himself, and those with whom he acted, as sincere friends of the Church as the illustrious Duke, or any of those who acted with him. He must at all times contradict such statements, come from what quarter they might.

The Marquess of Londonderry

was most happy to hear such declarations as had fallen from the noble and learned Lord on the Woolsack, but as they were so much at variance with the expressed opinions of members of the Cabinet in the other House, he trusted the noble Viscount at the head of the Government would state what the real opinion of the Cabinet was upon the subject.

Petition to lie on the Table.

The Bishop of Rochester

said, that in consequence of an allusion having been made to the Irish Ecclesiastical Commission, he wished to know from the noble and learned Lord on the Woolsack, the authority under which that commission was issued? On the subject of commissions there was a declaration on the rolls of Parliament, in the reign of William 3rd, in which it was set forth "that the late King James 2nd had, by the assistance of evil counsellors, endeavoured to subvert and extirpate the established Protestant religion, by issuing, or causing to be issued, under the great seal, a writ for the erecting of the late High Court of Commission for inquiring into ecclesiastical affairs;" and it went on to say, "that that Commission, and all such other Commissions, were illegal and improper." He certainly was very jealous of such Commissions being issued at all, because they were very like travelling Star Chambers, proceeding through the country for arbitrary purposes. He should like to know from the noble and learned Lord on the Woolsack whether there was any authority for issuing this commission. For his own part he thought there was not, and if there were not, the people of Ireland were not bound to obey the Commissioners.

The Lord Chancellor

—When an individual who wished, or seemed to wish, to have information as to whether a certain thing could be done or not, set out with stating that he knew it could not, and he was certain it could not, what, he would ask, was the poor unhappy mortal to say of whom the question was asked? In general, when information was called for, the object in view was the removal of ignorance. But in this instance the right reverend Prelate who asked the question declared at once that he knew the subject a great deal better than he (the Lord Chancellor) did, although he applied to him for information. The right reverend Prelate seemed to have made up his mind completely on the subject before he put his question. This was certainly rather a curious mode of proceeding. The right reverend Prelate ought rather to have said, "I don't want information, I have made up my mind fully on the question." Now, he would tell the right reverend Prelate, that the authority to which his inquiry related was the prerogative of the Crown, the undoubted prerogative of the Crown, which at all times his Majesty had a right, as his predecessors had heretofore done, to exercise. It would still so remain, until the constitution was altered, (and possibly it might be altered under the advice of the right reverend Prelate), but until it was so altered, until the royal authority was limited, such Commissions would be issued, and legally issued. The right reverend Prelate had stated that this was an illegal commission. He had decided and pronounced it to be so. [The Bishop of Rochester.—I did not.] Then it was a legal Commission; but the right reverend Prelate did not know under what authority it had been issued, and he wished to know if any authority existed, what that authority was. Then came a manifest absurdity; for the right reverend Prelate, as yet ignorant of the authority, called upon the people of Ireland not to obey the Commission. Let their Lordships observe, a right reverend Prelate, a Member of the Lords' House of Parliament, an individual who sat amongst the Peers of the realm, who was himself a counsellor of the Crown, and who sat in that House by the favour of the Crown, thought it expedient and fitting, and consistent with the furtherance of the public service, and the preservation of public quietude, to tell the people of Ireland from his seat on the bench of Bishops in the upper House of Parliament, that they were not bound to pay any deference or respect whatever to his Majesty's Commission, and that they ought not to attend to that Commission, which they would not do if they followed the right reverend Prelate's advice. Now, he was certain that the people of Ireland would not follow such advice. His belief was, that the people of Ireland would show more wisdom than their adviser, and would loyally and peaceably comply with the terms of the Commission. But then there had been a most precious, indeed an inexplicable, crotchet raised by the right reverend Prelate, whose learning had been exhausted to show that the Commission was not only an illegal Commission, but an Anti-Protestant Commission, such as was issued by James 2nd, and was put down by Act of Parliament at the Revolution. What was it that the right reverend Prelate confounded this Commission with? Why, with the High Court of Commission, which had just as much to do with the Commission for Ireland as it had to do with the commission of a captain of horse. That was a Court for the trial of causes. So much for the learning of the right reverend Prelate. Such a jurisdiction as that which was seized by James 2nd, had been rejected from the time of Magna Charta downwards. The Crown had no right to arrogate to itself such a power. No lawyer, except the advisers of that infatuated monarch, had ever maintained that any one had the power to create a new Court to proceed after the manner of the High Commission Court, which was strictly and truly an Inquisitorial Court to try causes. He had to apologise to the House for stopping to take notice of this at all. He would, if they were moved for, produce to the right reverend Prelate twenty or thirty Commissions of this sort that had issued from time to time. Perhaps he would think those had issued in evil times, or peradventure, that they had now arrived at the most evil time of all. One of the latest Commissions, however, of this kind, had issued at the instance of Sir Robert Peel, when he was in office, and under the sanction of Sir James Scarlett—two of the greatest conservatives of the present day. That was in the month of June, 1830. That Commission actually, amongst other things, authorized the Commissioners to examine and report as to the manner in which all rectors were in the habit of performing their duties, and actually how far the clergy complied with the law in allowing a sufficient income to their stipendiaries—one of the strongest measures that could very well be thought of. He begged to remind their Lordships' that he had been dragged into this discussion very unexpectedly and very unusually. It was by no means a convenient mode of discussing a question of this sort, especially where it was intended to throw a censure on the Crown or the Government. It was much more convenient and fair to give a notice of Motion, and if any noble Lord chose to adopt that course, he should be perfectly ready to vindicate the Commission, because, whatever responsibility was attached to it, he had his share of that responsibility, as he had put the Great Seal to the Commission; but he had never done an act, in respect of which he had felt his weight of responsibility less.

The Bishop of Rochester

begged to explain, that he had not stated that the Commission was illegal, though an opinion of that kind was supported by very high legal authorities.

The Earl of Wicklow

hoped that the right reverend Bench would disregard the means by which they obtained access to that House, and would ever be found anxious to perform their duty in that manner of which their conscience approved. The right reverend Prelate who had recently spoken was perfectly justified in delivering his opinion in the manner in which he had done that evening; and, although it ill became him to differ on legal points with so high an authority as the noble and learned Lord on the Woolsack, yet this he must say, that it had been a subject of discussion amongst lawyers as great as the noble and learned Lord, whether this Commission was or was not illegal. He believed that this Commission was of such a nature that its legality might be doubted. Several instances had occurred where it had been disobeyed, and he would ask whether any steps had been taken to punish those who had so disobeyed? There was, whether the Commission were legal or not, something in it so grossly injurious, so impolitic, so destructive of the interests of the Irish Church, that it might well call for observation. And if there were any doubt on the subject, and it appeared that there was much doubt, he hoped that the Irish clergy would pause before they answered the queries put to them, until they had some better information than they had yet received, until they were more fully cognizant of the authority under which this Commission was issued. The noble and learned Lord hail censured the conduct of a Peer of Parliament in acting as the right reverend Prelate had done. Now he, as a Peer of Parliament, would say, and he hoped that his voice would be heard through every part of Ireland, that, where a doubt existed, the clergy ought not to act until that doubt was removed.

Lord Wynford

denied, that the prerogative of the Crown extended to the issuing of such a Commission as this. No doubt the King had the power to issue a Commission to examine how far the clergy did their duty. This, however, was not a Commission to ascertain whether they had or had not done their duty—no, it was a Commission to inquire into the amount of their property, and he would maintain that the clergy of Ireland were no more bound to answer interrogatories on that subject, than they were bound to give up that property. His noble and learned friend had alluded to precedents, but he believed that when those precedents were examined, it would be found that they had all been issued by the authority of an Act of Parliament. The Commission which had been issued directed that persons should be examined on oath; but the persons so examined could not afterwards, whatever their evidence was, be prosecuted for perjury. An Act of Parliament was necessary to authorize the passing of such Commissions as was the case with the Commission issued in Lord St. Vincent's case, for examining the accounts of the Treasurer of the Navy. Lord Coke, no mean authority, expressly said, that a commission of inquiry, except into matters derived from the authority of the Crown, was illegal. He would maintain, that no person was bound to answer under this Commission. This Commission was appointed to inquire into the amount of property held by the clergy, and also into the number of persons belonging to different sects. Now he would say, that no Commissioner could legally ask questions on either of these points. On that subject he and his noble and learned friend were at issue. Such a Commission was, in his opinion, of no force, except it was authorized by an Act of Parliament.

The Lord Chancellor

did not rise to prolong this debate; but, as his noble and learned friend had doubted the validity of the Ecclesiastical Commission, he should merely state that he was perfectly ready to meet his noble and learned friend on that point at any time. His noble and learned friend had mistaken the nature of the Commission of 1830. That Commission was to inquire into the conduct of the clergy, even with reference to the amount of stipends which they paid to their curates. Was not that, he would ask, an interference with their private affairs? The opinion of Lord Coke was, that all Commissions leading to adjudication were illegal. But that opinion was beside the present question. If the doctrine laid down by his noble and learned friend were correct, then all the Commissions which had been issued for a long series of years were illegal, and he did not think that his noble and learned friend would push his argument so far. He knew that the Lord Chief Baron and himself, in requesting that certain points might be referred to the law Commissioners for their consideration, prevailed on their Lordships to suspend their proceedings with reference to a Bill which had been sent up from the House of Commons, until the opinion of those Commissioners could be obtained. Now, that Commission had not proceeded under an Act of Parliament. His noble and learned friend had adverted to the right of the Ecclesiastical Commissioners to examine on oath. Again, and again, Commissioners had been empowered to examine on oath. The Law Commissioners had done so; they had examined professional men as to the profits of their business, the charges which they made to their clients, and various other points. Parties in those cases answering falsely, were indictable for a misdemeanour, although they could not be prosecuted for perjury. All these commissions rested on precisely the same ground, and he entered his protest against the idea of their being illegal. He would not embarrass his mind with the vestige of the shadow of a doubt as to the legality of these Commissions, and he could not help complaining that this objection should be now set up, after the whole Session had passed without any intimation whatever having been given of it.

The subject was dropped.