HL Deb 05 May 1846 vol 86 cc109-20

rose to bring forward the two Motions of which he had given notice. The first was for a Copy of the Correspondence that took place with the Irish Government relative to the appointment of the Custos Rotulorum of the county of Wexford, on the death of the Marquess of Ely;" and the other was, "That there be laid before this House a Return, showing the several Vacancies which have occurred in the Offices of Lieutenants of Counties, and Custodes Rotulorum in Ireland since the passing of the Act 1 and 2 Will. IV., cap. 17, and the names of the several Persons appointed to fill such Vacancies. He begged to express his opinion that the noble Lord who had been appointed the Custos Rotulorum of the county of Wexford (the Earl of Courtown) had every claim to any compliment or favour that Her Majesty's Government could confer upon him; and he brought forward the subject not from any feeling of hostility to that noble Lord, or from any personal considerations as far as he was himself individually concerned, but from a feeling of duty towards his brother Lord Lieutenants in Ireland generally. He would beg to remind their Lordships of what had taken place when the Bill had been first introduced during the Government of Earl Grey. On that occasion Viscount Melbourne, who was then Secretary of State for the Home Department, stated, in introducing the Bill:— The effect of this measure would be to establish in each county in Ireland an officer through whom there should be a settled communication between the Government of Ireland and the magistracy of each county. The want of such a connection occasioned great evils. The Government was compelled to rely upon the statements of a single magistrate, or of a body of magistrates, on matters in which those magistrates themselves were interested, they being persons of whom the Government could know little or nothing. From these circumstances the Government was necessarily liable to fall into great mistakes. He proposed this Bill as one step towards introducing into Ireland the constitutional Government of England, which could never be done without assimilating the institutions of the two countries. Another advantage would result in the formation of the magistracy. The Lord Chancellor of Ireland would, by this officer, secure the means of informing himself of the qualifications of persons recommended for commissions of the peace. At present a strict inquiry into the state of the magistracy of Ireland was necessary, and this could be better effected by having a channel that could be relied on for obtaining the necessary information, than by the present means. The noble Viscount afterwards, in the course of the debate, stated, in reply to the Earl of Limerick, that "he begged to remind the noble Earl that it was not proposed to abolish the office of Custos Rotulorum, but to unite that office with the other." The noble Duke opposite (the Duke of Wellington) supported the Bill on the general principle. The noble Lord proceeded to quote some extracts from the speeches of the Marquess of Londonderry and the Earl of Wicklow on the same occasion, in order to show the general feeling of their Lordships' House at the time the Bill was passed in favour of uniting the two offices of Lord Lieutenants of counties and Custodes Rotulorum. As to himself, he had but to say that no case could be made, or had been attempted to be made against him as a reason why the office of Custos Rotulorum, when vacant, should not have been given to him as Lord Lieutenant of his county. Without a single exception, whenever the office of Custos Rotulorum became vacant, it had been bestowed on the Lord Lieutenant of the county. In the case of Westmeath, when the former Custos Rotulorum died, the Marquess of Westmeath, as Lord Lieutenant of the county, claimed the appointment, not as a favour, but as a right, and in this was supported by all his friends among noble Lords opposite. The noble Earl concluded by repeating that he had no intention of giving any personal offence by his Motion, and that he had brought the subject forward under a feeling that he was bound to defend the privileges of the other Lieutenants of Ireland.


, after complimenting the noble Lord on the temper in which he had introduced his Motion, proceeded to read the clause of the Act, in order to show that it was distinctly con- templated, in the passing of the measure, that the Lord Lieutenant of Ireland should have the power of appointing to the office of Custos Rotulorum without reference to the county lieutenancy. The Lord Lieutenant of Ireland was left without any restriction or reservation whatever in regard to this office; and having said so much, he should here protest against the doctrine that the Lord Lieutenant of Ireland was to search Hansard's Debates on such occasions, in order to know the sentiments expressed by individuals on the discussion of measures. He (the Earl of St. Germans) was not himself a Member of their Lordships' House at the time alluded to; and his noble Friend the Lord Lieutenant of Ireland was also not in their Lordships' House, having been at the time absent in a diplomatic situation. His noble Friend was bound to look to the Statute-book as his guide, for there was no other authority on which he could safely rely. If the object was to combine both offices, why were not the Custodes Rotulorum appointed to the Lord Lieutenancies of the counties? They found thirty-two Custodes in Ireland at the time; and he believed he had the authority of the noble Duke behind him (the Duke of Wellington), and of the noble Earl near him (the Earl of Wicklow), that these individuals were proper persons to be appointed Lord Lieutenants. If the argument of the noble Lord, that Lord Lieutenants should be appointed Custodes, held good, why should it not also apply the other way to the appointment of the Custodes to the office of Lord Lieutenant? He should also remind the House that in the case of the vacancy which occurred in the county of Down, Lord Castlereagh was appointed to the Lord Lieutenancy, though the Marquess of Londonderry was Custos Rotulorum.


said, there could be no doubt but that, as had been stated by his noble Friend (the Earl of St. Germans), the right technically and legally remained with the Lord Lieutenant of Ireland to appoint to the office of Custos Rotulorum an individual distinct from the lieutenant of the county; but at the same time there could be no doubt that in 1831 or 1832, when this measure had been introduced, the intention of the Government certainly was to assimilate the law as to the local superintendence of counties in Ireland to that of England, by appointing to each county in the former country, as in the latter, a Lord Lieutenant who would be also a Custos Rotulorum. It was felt to be a matter of very great importance that the Government should have some person resident in the country, and of sufficient station to ensure authority, to communicate with on matters connected with the magistracy. He believed noble Lords would recollect that in the selection of these Lord Lieutenants, though as a matter of course every Government would give a preference to individuals agreeing with them in political opinions; yet still, that under the Government of Earl Grey, whenever there were found in any county a person of the highest rank resident in that county, such person was, without reference to political opinions, appointed to the office of Lord Lieutenant. [A Noble LORD: Lord Cour-town?] The late Lord Courtown was one for whom he had entertained a sincere personal friendship, and he need hardly say that he felt the same sentiments towards the present Lord; but, although Lord Courtown was a resident proprietor, yet his noble Friend opposite (Lord Carew) was a still larger proprietor, and also resident in the county; and with the exception of one having been at the time a Peer and the other a commoner, there was no possible ground on which Lord Courtown could take precedence of his noble Friend. If Lord Courtown had at the time exercised the office of Custos Rotulorum, he (Lord Stanley) had no doubt that the office of Lord Lieutenant would also have been conferred upon him. But the former office had been at the time held, he believed, by the Marquess of Ely, who was not a resident in the county, and who, besides, had by some arrangement been appointed to the lieutenancy of another county. The course pursued was to give the office of Lord Lieutenant to the person holding the largest stake in the county, or, where there were two competitors of equal rank and station, then to give it to the individual who agreed in political opinions with the Government. It was said it would be a great injustice to ask any individual to resign the office of Custus Rotulorum, and as the two offices were thus in many cases given to different persons, the law should necessarily provide that they could be so disposed of. But at the same time he begged to say that it was the intention of the Government at the time, that they, and he believed all subsequent Governments, should, when the office of Custos Rotulorum fell vacant, confer it on the Lord Lieutenant of the county. He did not think that the case cited by his noble Friend supported his case; because, though when the lieutenancy of the county of Down fell vacant it had not been given to the Marquess of Londonderry as Custos Rotulorum of the county, still it should be recollected that the noble Marquess was already Lord Lieutenant of an English county, and therefore, instead of conferring the office on him, it was given to his son. This was the only exception that could be cited. He did not know whether he was himself in office at the time to which his noble Friend alluded. [Lord CAREW: The 7th of October.] He recollected hearing of it at the time, and it certainly gave him very great regret that the Lord Lieutenant had not acted differently from the course which he had taken towards his noble Friend. He regretted the course which had been pursued: he thought it was an unfortunate one, but at the same time he was sure the Lord Lieutenant could not have intended the slightest censure on the noble Lord. He said so because he felt, with his noble Friend who had just down, and whose experience of Ireland was still later than his own, that there was no one among the Lord Lieutenants of Ireland who had conducted the duties of his situation more satisfactorily to the Government, without reference to any political considerations, or who had acquired more of the confidence of the Government, and of the esteem and respect of the county over which he presided, than his noble Friend opposite. He thought it was unfortunate and inadvertent that a deviation from the usual rule should have taken place in the case of a person holding so high a position in the estimation of his countrymen, as well as of the Government, as his noble Friend admittedly held. The Government should undoubtedly have at all times in their hands an absolute and legal right of separating these two offices; but at the same time he considered that his noble Friend was perfectly justified in bringing this case before the House. He trusted that in future there would be an understanding that, unless very strong grounds existed to the contrary, or unless it would be attended by great inconvenience to the public, the two offices should not be separated.


said, he certainly heard the observations of the noble Earl (Earl of St. Germans) with great regret, because, after the long time that had elapsed since the Notice of this Motion had been first given by the noble Lord, he did expect that his noble Friend would have been prepared with a different answer on the part of the Irish Government. He did expect that his noble Friend would have said something to the effect that the Lord Lieutenant of Ireland, having looked only into the Act of Parliament, and seeing there that there was no imperative duty imposed upon him of giving the office to the Lieutenant of the county, had, under the belief that he had the complete disposal of it in his own power, given it to a noble Earl whose great services and merits all should allow, but that care would be taken that the mistake should not be construed into a precedent. His noble Friend had, however, rode off on another ground. They did not want him to tell them that the Lord Lieutenant had acted according to the Act of Parliament. They did not want any one to tell them that the Lord Lieutenant of Ireland did not violate the law of the land. He remembered well that a distinct understanding had been expressed in the debate on this Bill, that the two offices should not be separated. He had been in the habit of doing then what he was now sorry for, of attacking the Government of Earl Grey; but if he had been as well aware then of the principles of parties and of their conduct in Parliament as he was now, he would not have done so. Earl Grey, in answer to his argument for giving the new offices to the Custodes Rotulorum, said that the Government had anxiously considered the matter, but that in many cases these latter were very old men, or not resident in the counties, and that they could not therefore be all selected, but that he would assure the House that it was the firm intention of the Government that hereafter, whenever the office of Custos Rotulorum became vacant, it should, as a matter of course, be given to the Lord Lieutenant of the county. The noble Lord has shown that in every case since that time the understanding had been adhered to. It was clearly impossible that the Marquess of Londonderry could be appointed to the lord-lieutenancy of Down, while he held a lord-lieutenancy in England. He also could confirm the statement of his noble Friend as to the circumstances attending the appointment of the Marquess of Westmeath to the lord-lieutenancy of Westmeath. He was most anxious that his noble Friend should have admitted the political error, and it was a matter of the greatest importance that this should be done. The object of this Bill was to as- similate the laws of the two countries, and it was uniformly the case that the offices were united in England. The magistrates were appointed by the Custos, and not by the Lord Lieutenant. He trusted, before the discussion was over, that some Member of the Government would admit that an error had been committed, although it was a pardonable error, and should not be drawn into a precedent.


said, that it never had been the practice in Ireland for the Custos Rotulorum to have anything to do with the recommendation of the magistracy; therefore the evils anticipated by the noble Earl who had last spoken could not arise. The Lord Lieutenant of the county was the person with whom the Lord Chancellor communicated on the subject of any appointments to the commission of the peace. The noble Lord who had held the office of Chief Secretary for Ireland had stated that it was the desire of the Government, with whom he had held office while in the other House, to appoint the same persons to the two offices in all cases; and that the only exceptions had been in cases where the Custodes were either non-resident, or were too infirm to discharge the duties of the lieutenancy. Now, he (Lord St. Germans) was certainly not aware that either the Earl of Roden or the Earl of Dunraven, both of whom had been passed over in these appointments, were either absentees, or were men incapacitated for the duties of the office.


said, he had waited in the hope that some Member of the Government would have availed himself of the suggestion thrown out by his noble Friend (the Earl of Wicklow), who had recently addressed the House, and would have taken that only line of defence which he much regretted to see had been entirely laid aside by the noble Earl (the Earl of St. Germans), who had undertaken to defend this appointment, namely, that this act was an oversight on the part of the Government in Ireland. He felt it necessary to say a few words, as an additional witness, having been a party concerned in the case of the lieutenancy of the county of Westmeath, when conferred on the Marquess of Westmeath, to which allusion had been made. That noble Lord had written to him, stating frankly that he did not ask the lord-lieutenancy as a favour. Lord Melbourne, who was then Prime Minister, was written to; and his answer was clear and distinct, as were all com- munications from that Nobleman—"Whether you may like it or not, after the discussions that have taken place, you have no alternative; Lord Westmeath must be Lord Lieutenant of the county of Westmeath." What could more distinctly prove that the separation of the offices was most inimical to the public convenience, and to the due despatch of the public business, than the defence which the noble Earl (the Earl of St. Germans) had brought before the House—namely, the question whether the Custos Rotulorum did there, as here, return the magistracy? Did the noble Earl know the state that country was in, before the appointment of Lords Lieutenant of counties? Why, no one recommended the magistrates; the governors of the county did not recommend them; the Government only recommended them. The Custos Rotulorum did not recommend; and it was in consequence of that deficiency that the additional office had been created. In England, the office of Lord Lieutenant being always united with that of Custos Rotulorum, the Lord Lieutenant certainly, in name, was the person who discharged this duty. Did the noble Earl mean to say, that the Custos Rotulorum was the person who recommended the magistracy? Why, he was the chief of the magistracy; and, on the other hand, the Lord Lieutenant was the chief of the lieutenancy. The distinction was as plain as ever, with the exception that it had never been called into practice; for this simple reason, that there never had been so gross a violation of the common practice, which so obviously tended to the public good, as that now brought before the House. The only case in England was in the county palatine of Durham; there the Bishop of Durham was the Custos Rotulorum; and as he could not be the Lord Lieutenant, that office was held by another. But as Custos Rotulorum, he could recommend the magistrates; and, what was more, he appointed the sheriff. He exercised all those functions of a civil nature, which were combined generally in the two offices, when executed by the same individual. But the noble Lord had given hardly any defence of those "inadvertencies" which, he must say, had been of frequent occurrence in the administration of the Irish Government in the last three or four years. The House had been told, that a former Lord Lieutenant of Ireland never read the newspapers; they were now told, that the Lord Lieutenant would not be expected to read Acts of Parliament. If he had no better means of information than the newspapers, rather than remain in ignorance, it would be best that he should read the newspapers. As to Hansard, it had only been alluded to as an authentic record of that which transpired in debate, and of the Parliamentary understanding duly entered into between the different parties to the discussion. He (the Marquess of Normanby) knew not how this matter would end; but he felt called upon to throw out for the consideration of the Government the fact that there was a noble Lord who might put an end to all this public inconvenience of establishing a precedent detrimental to the public service. It was not for him to suggest to that noble Lord what course he ought to take in this instance; but after the attempt at a defence which had been made by the noble Earl opposite (the Earl of St. Germans), he (the Marquess of Normanby) thought it desirable that that House, unless the Government gave some assurance on the subject, should come to some resolution that the proceedings which had taken place in this case should not in future be drawn into a precedent.


(after a short pause) rose and said, he should not have thought it necessary to have said a word on the present occasion if any declaration, such as that which had been suggested, had been made on the part of Her Majesty's Government. He had naturally expected and had waited for it; but, perceiving that no such declaration was likely to be made, he conceived himself bound, after what had taken place, to concur in the astonishment which had been expressed at the solitary defence which had been set up on this occasion for the conduct of the Government. He felt it to be peculiarly necessary that the sense of the House should be marked on the present occasion. He also thought it necessary to add his testimony to that of many other noble Lords, who had been enabled to speak from their own experience, that, having sat in the House and heard all that passed on the subject of the appointment of Lords Lieutenant of counties by Act of Parliament he had understood that nothing was more clear than the intention expressed in that House (and, he believed, also expressed in the other House of Parliament) on the part of the Government at that time, that the two offices of Lord Lieutenant and Custos Rotulorum should be united. The clause of the Act of Par- liament referred to by the noble Earl who had defended the appointment which had been made in the present instance, was one which it would have been preposterous not to have inserted in the Act for the purpose of preserving the prerogative of the Crown; because cases might arise in which it might be most material to make a separation between the two offices. For instance, if the Lord Lieutenant was disqualified by illness, by absence from the country, or for other considerations, from duly discharging the duties of that high station, it was quite fit that the Crown, who was sole judge of the disqualification, should remain armed with power to separate the two offices. But was it to be inferred from this, that it was intended, notwithstanding the declarations of the Government, by which the measure was introduced, of which declaration the noble Earl opposite (the Earl of St. Germans) considered it to be the function of the Lord Lieutenant of Ireland to remain ignorant, that the rule and practice were to be set aside. At all times such a matter as that now before their Lordships must be of importance, but in the present state of Ireland it was more important than ever. It was of the utmost importance where addresses were made by high authority in Parliament, calling upon the resident landlords of Ireland to discharge their duty. If they were, as undoubtedly they were, most powerful instruments for preserving the welfare and peace of that country, was the present a time to be chosen by the Government for the violation of a rule which had been adopted by Parliament as the fittest in respect of the administration of the important functions united in the character of Lord Lieutenant and Custos Rotulorum? He (the Marquess of Lansdowne) thought it most unfortunate that this deviation from that rule should have occurred at all; and most peculiarly was it unfortunate that it should have occurred in the present year, and after the discussions which had gone on in another place. He did not know in what shape or way the House could mark its sense of the opinions which had been expressed on this subject without a dissentient voice, excepting the solitary and most imperfect defence—imperfect because he had an imperfect case — set up by the noble Earl opposite. He (the Marquess of Lansdowne) expected some declaration would be made by the Government which would relieve the House from further reference to the matter; if not, he hoped some further reference would be made to it on the Motion of some noble Lord.


said, that concurring with his noble Friend who had just sat down, he wished to see the laws of the two countries, England and Ireland, assimilated. He hoped that Ministers would now speak out, and make a declaration that this matter had arisen from inadvertence; for he (the Duke of Richmond) believed that to be the truth. If they did not do so, he hoped that when the Papers were produced, some noble Lord would move a resolution to the effect that it was desirable the two offices of Lord Lieutenant and of Custos Rotulorum should not be disunited. The noble Marquess who had spoken in this debate (the Marquess of Normanby) complained that the Lord Lieutenant of Ireland did not read Hansard's Debates. His noble Friend had lately been abroad, enjoying himself in Italy, and seemed to know but little of what had taken place in this country during his absence. Hansard's Debates! Why, if his noble Friend had been here, he would have known that of these it had been said, "let bygones be bygones." He (the Duke of Richmond) defended the Lord Lieutenant of Ireland for not reading Hansard, or the newspapers, or the speeches in Parliament, when within twenty-four hours the man who delivered a speech could entirely change his opinions, or, if not, so alter his course of proceedings as to indicate a change in opinions formally expressed and recorded.


was understood to say, that the public convenience was much forwarded by the union of the two offices.


(across the Table), was understood to observe that if it were intended that the two offices should be consolidated, the course for him to pursue would be to bring in a Bill to unite them.


said, he had been misunderstood by the noble Earl, for he had expressly stated that the prerogative of the Crown ought to be preserved. All he (the Marquess of Lansdowne) asked was, that the noble Earl would state that the matter had arisen out of inadvertence, and would not be likely to occur again. This the House had a right to expect; and if that assurance was not given, it would not discharge its duty if it did not in some way see that its own un- derstanding on the subject was preserved and adhered to.


said, that he had not had an opportunity of talking to any gentleman connected with the Government of Ireland on the subject, and therefore he was not enabled to state how this matter occurred; but he remembered perfectly that he was in the House when the Bill in question was under discussion; and though sitting on the other side of the House, he had supported the Bill brought in by the then Ministry. He also remembered that he had stated as his opinion that the officer holding the appointment of Lord Lieutenant of a county ought to be selected from amongst the principal persons residing in the county; and he also stated that the Lord Lieutenant ought also to be the Custos Rotulorum. He knew that the person holding the office of Custos was an officer of the Lord Chancellor, while the office of Lord Lieutenant partook rather of a military than a civil character; still he had stated as his opinion that both of those offices ought to be held by the principal person resident in the particular county. That was his opinion now. He would state here and everywhere that the two offices ought to be held by one officer, and that officer the Lord Lieutenant. He could not take upon himself, without consulting gentlemen connected with the Government of Ireland, to say what should or what should not be the case in future: he stated candidly what had been and still was his own opinion. He was, however, convinced, that if any mistake had been made, it had been honestly and fairly made from a contemplation of the Act only, and without reference to any thing that might have passed in this House on the subject. It was possible that, not seeing or not being aware of what passed, his noble Friend the Lord Lieutenant of Ireland had made what he (the Duke of Wellington) certainly thought was a mistake; but still he could not pretend to say that the thing should not happen again, without having an opportunity of consulting those connected with the Government of Ireland on the subject.


said, he was not surprised that a mistake had occurred, if it had arisen from what had taken place in that House, when first the parties who set the example of misunderstanding were the very parties who had themselves brought in the Bill. The present cry came very ill from that quarter.

Motion agreed to.—House adjourned.