§ THE EARL OF DERBY
My Lords, the question which I have to put with regard to the late creation of the barony of Fermoy is one of great importance, affecting as it does the privileges of the peerage, of which your Lordships are the appropriate guardians, which concerns the legitimate and legal exercise of the prerogative of the Crown, and which affects the construction now for the first time placed upon a very important provision of a very im- 1762 portant Act—the Act of Union between England and Ireland. I think I have a right to complain of the course pursued by the Government, who have, without due consideration of the law of the case, put an interpretation on the Act which is strange, and, I think, erroneous, and in direct contradiction of the interpretation which has been placed upon it by every previous Government, and even by the framers of the Act of Union fifty-three years ago. I shall presently show good reason to your Lordships for my statement that the construction put on this Act by the creation of the Barony of Fermoy has been put upon it in order to serve a political purpose, and owing to the pressure of a political emergency. Your Lordships are aware, that by the 4th Article of the Act of Union it is provided that upon three vacancies occurring in the Irish peerage the Crown was empowered to create one peer. The Irish peerages were to be reduced till they arrived at 100, the object being to keep at that number those out of whom the representative peers were to be elected. It was stated that peerages in abeyance should be deemed to be existing peerages, and that no peerage should be deemed extinct until one year after the death of the last possessor. But in order to guard the rights of successors it was provided, that after the expiration of the year—the Crown having availed itself of the vacancy—if a claimant should appear, that circumstance should have the effect of preventing the next vacancy that should occur counting towards a new peer. Fifty or sixty peerages had become vacant in Pursuance of these enactments, and fifteen or sixteen peerages had been created since the Union. The last creation was in 1852, when Mr. Fortescue was created a baron, In the course of April or May, in the present year, another creation took place, by which Mr. Roche, the Member for the county of Cork, was raised to the peerage by the title of Baron Fermoy. On hearing of this creation, and on receiving some information connected with it, I thought it my duty, in order to elicit the grounds on which this creation was to be vindicated, to move for a return of the three peerages which had become extinct, so as to justify this creation; and I confess; was with some surprise, notwithstanding the information I had received, that I found the first of these peerages which were now held to authorise the Government to make this last creation fell vacant 1763 on the 1st of March, 1802, within about twelve months after the Union, and when the Government of the day must have had the whole case fully in their mind, and must have been conscious of the intentions and bearing of the Act. I hope and believe, my Lords, that on this occasion I do not attempt to interfere with the exercise of the just prerogative of the Crown—nor will I canvass the merits of the gentleman on whom has been conferred this honour. I know little of the gentleman personally. I know that his family are strong and violent opponents of the existing Church of Ireland. They took an active part in the repeal agitation of 1843—that may constitute a claim to the favour of the Crown; but of late years the gentleman in question has been a staunch adherent of the Government, late and present, and that, I assume, is the ground why the favour of the Crown has been directed upon him. Indeed, if this gentleman has, through evil report and good report, given his steady support to Government, and if he is satisfied with the barren honours of an Irish peerage, all I can say is, he is much more moderate in his demands for compensation for his services than many other supporters of Her Majesty's Government coming from the same part of the empire. But this is not a question as to individuals—it is a question whether the Crown has the right by law, and under the circumstances, to create a new peerage—it is not a question of the prerogative of the Crown, except so far as the prerogative is connected with, and defined by, the statute. It strikes me as very singular that the first of the three vacancies which gave rise to the new creation should fallen vacant so far back as 1802, and that in all the successive creations that have taken place since that time no one dreamt of the earldom of Mountrath being vacant, so as to give the Crown a right to create a new peer. The circumstances connected with the vacancy are shortly these: The Earl of Mountrath having no son, and the title being likely to expire with him, asked and obtained of the Government of that day, that he should be created Baron Castle Coote, with remainder to his heirs male, and in default of male heirs to go to his heirs female. He died in 1802, little more than twelve months after the establishment of the Union, and was succeeded in his barony of Castle Coote by his nephew, who died in 1822. The son of this nephew died in 1827, and it waa this vacant 1764 barony of Castle Coote that constituted one of the three peerages which the Government of the day availed themselves of in order to create another Irish peerage, under the provisions of the Act. Now, a few years ago there was laid before your Lordships a list of peerages vacated and peers created since the Union; and I found among the list that the last peer had more than one peerage vested in him. Some of the titles became extinct since the Union, and that is the case of the barony of Mountrath. I found that no less than nine cases up to the year 1840, precisely similar to this one, have occurred; but in no one instance have Government availed themselves of them for purposes of creating new peers. I have already stated—I hope not offensively—that Government came to the conclusion it did on the pressure of a political emergency, and to serve a political purpose. Your Lordships shall judge of my reasons for coming to that conclusion. It will strike you as somewhat curious that the right of creating a peer accrues to the Crown within one year after the death of the last of the three peers; and it is a singular thing that the two last peerages which perfected the title of the Crown to create a new peer expired on the 26th and 29th of January, 1853; consequently, the right of the Crown accrued in January, 1854, and yet it was not until the end of March, 1855, that Government exercised their right, if the return be correct. I have little or no experience myself in such cases, but I can hardly recollect an instance in which a Government whose tenure of office was so precarious as that of the late Government, twelve months ago, retaining in their possession the right of creating a peer for twelve months, and I do not think their supporters who might be anxious for the honours of the peerage could have given them a comfortable time of it; and I think, in order to avoid the importunity of claimants, it would be the best course to take the earliest opportunity of making these creations. But, if there was any doubt upon the part of Government as to whether they should use the right or not, I think it is perfectly clear that it was improbable, to say the least of it, that they should postpone it for the entire twelve months, and I will tell you why. It was not until the other day the Government had the least idea of availing themselves of this earldom of Mountrath. On the 15th of March, 1854, died Viscount 1765 Netterville, and it was generally believed that the title was extinct, and, consequently, that would make up for the three peerages which would entitle Government to the new creation. In the meantime Mr. Roche received the promise of a peerage, and "All went merry as a marriage bell;" but just one month before the appointed time a claimant to the Netterville peerage appeared, and that title being then in abeyance could not be considered and made use of as an extinct peerage. It was necessary, therefore, to cast about for some other title in lieu of the Netterville peerage to enable the Government to perform their promise to Mr. Roche, and it became necessary to rake up this old ghost of a peerage. Now, I say this is a question which the House is bound to enter into. I believe there has been, for political purposes, a violation of the letter, and I am sure of the spirit of the Act of Union, and I think I can make it clear to your Lordships that neither by the letter nor the spirit of that Act was the extinction of the peerage of Mountrath in 1802 such as to warrant the creation of a new peerage. I have shown that previous to 1840 there were nine similar cases which, if the doctrine of the Government is correct, would justify them in creating three new peers. I will suppose a case—
here rose and said: As the question propounded by the noble Earl was one of great importance, and depended on the construction of an Act of Parliament, on which their Lordships could hardly be expected to come to a decision without due argument, he would suggest that the proper time to bring forward the question would be when Lord Fermoy applied to their Lordships to be entitled to vote in the election of a representative peer for Ireland, when his claim might be objected to, and then the whole question might be discussed, or referred to a Committee for Privilege, when the question could be discussed by their Lordships, with the assistance of the Judges of the land. This, he thought, would be the most convenient course to adopt.
§ THE EARL OF DERBY
I never heard, my Lords, a more disorderly call to order. My intention is to move that the question shall be referred to a Select Committee, and, in doing so, it is clearly not only my right, but my duty, to state the case according to the best of my ability, and to lay a Parliamentary ground why a reference should be made to a Committee for 1766 Privilege to determine whether what was done by the Executive, and to which the name of the Crown is annexed, is correct. I am bound to make this statement. When interrupted, I was saying, supposing two peerages held by one peer became extinct at the interval of a very short time, would the two peerages be considered separate and complete extinctions under the Act of Union, and just the same effect produced as if two titles had become extinct by the death of the holders? If this be so, see what it would lead to. There have been fifty or sixty Irish peerages vacant since the Union. Some of these peers may have held three, four, or five distinct titles. I have looked over the peerage, and I find the only Irish Duke holds six peerages, and, I ask, if those six peerages became extinct, would it entitle Government to create two new peers? The Marquess of Downshire has seven peerages, and if they became extinct the same result, according to the same doctrine, must follow; and in all probability, on the average, in the higher ranks of the Irish peerage, each peer holds three separate peerages. The consequence of the doctrine sought to be established would be, that on the extinction of three titles there would be one authorised creation of one new peer. If this doctrine stood, there would have to be created forty or fifty peerages retrospectively. The case is so stated according to the Government view; but the consequences would be so monstrous that I cannot believe that the framers of the Act had such a contingency in their imagination, or that they enacted the law in that sense. It cannot be denied that the purport of the Act of Union was, that until the number of the peers was reduced to 100 there should be one creation only to three extinctions. This was in order to ensure a rapid reduction of the number. But if each peer had three titles, it would not tend to the diminution of the number of peers if one creation were made on the extinction of three titles. It is clear that the creations, according to the Act of Union, refer not to peerages, but to persons, and unless there is a diminution in the number of peers there is not that extinction of the peerage contemplated by the law. The words are remarkable as showing this distinction. They are to this effect, that if it shall happen that the peerage of Ireland shall by extinction or otherwise be reduced to the number of 100, exclusive 1767 of those peers who by hereditary right are peers of Great Britain, then it shall be lawful to create one peer for Ireland as often as any one of such number shall fail, either by extinction or otherwise. The true intent and meaning of this Article being to keep up the peerage of Ireland to 100, exclusive of those peers who are entitled by hereditary right to a seat in this House. If the construction of this Act be that those peerages should be personal, and not connected with the dignity, then that interpretation is perfectly consistent with the rationale of the case, and effects the object of the Legislature at the Union, which was clearly to reduce the number of Irish peers to 100 permanently. This is the interpretation that has been acted on by every successive Government since the Union except the present Government. The principle has uniformly been not to consider the extinction of the dignity, but of the person, as the case provided for. Three or four more cases of this kind may shortly occur—indeed, must occur. The Marquess of Thomond's death, for instance, will vacate the marquisate; but that noble Lord is also Earl of Inchiquin, and he will be succeeded, I believe, by a gentleman named O'Brien, who is a Member of the House of Commons. Again, there is my noble Friend the Marquess of Westmeath, who is also Baron Delvin. On his death the marquisate is extinct, but the barony remains. Two other cases have recently occurred. The viscounty of Cremorne, for instance, has expired; but my noble Friend, who is not in this House, succeeded to the barony, and there was no question of creating another Irish peer as arising out of this extinction, though the Government, to be logical, should have done so in that as well as in the case now before your Lordships. Again, the earldom of O'Neil not long since became extinct; but the viscounty only vested in the person of the deceased peer was taken by his successor. That, too, has since become extinct; and yet no one has contended that these extinctions counted as two in respect to the creation of another Irish peer on the extinction of these Irish peerages. The Earl of Tyrconnel, again, died on the 26th of January, 1853; but he was also Viscount and Baron of Carlingford, and no one has contended that these three extinctions constituted a right to create another Irish peer. Viscount Melbourne, also, was Baron Melbourne; and, on the same principle as that adopted by the Government in the 1768 present instance, his death would make two vacancies out of the three necessary for the creation of an Irish peer. If the dictum which Her Majesty's Government has laid down should be adopted, you will, my Lords, stultify your whole proceedings—everything that has been done in this respect since the Union. You will put a new interpretation upon a most important statute, and you will provide, contrary to the letter as well as to the spirit of that statute, for an indefinite increase, instead of a definite reduction, in the numbers of the Irish peerage. I have thought it my duty to lay these circumstances before your Lordships' House on this occasion. Such a step as that taken by Her Majesty's Government, as singling out a peerage which has been extinct since 1832, has not been taken since the passing of the statute in question. I shall be exceedingly sorry if the claimant for the Netterville title shall have nipped in the bud the fond hopes of the hon. Member for Cork; but, my Lords, according to the practice of every Government since the Union, the patent of the barony of Fermoy, which he now holds, is no better than a piece of waste paper, possessing no more value than the paper I now hold in my hand. And until the title be duly granted, and the Ministry shall obtain an Act of Indemnity, the Baron of Fermoy cannot vote in the election of representative peers for Ireland, or claim to hold a right to do so by a valid title. I do not wish to deprive him of the title; but I consider that your Lordships are bound to take care that the prerogatives of the Crown shall not be exercised beyond the statutable power given to the Crown in this instance, and I therefore beg to move, That the Circumstances attending the Creation of the Barony of Fermoy be referred to the Committe for Privileges to consider and report.
§ EARL GRANVILLE
said, he entirely agreed with the noble Earl that the question was one of great importance to the House, as affecting its privileges, and also as involving the prerogative of the Crown; and if the noble Earl had wished to argue it on the constitutional ground alone, he (Earl Granville) thought the noble Earl would have acted more wisely, had he taken the advice of the noble and learned Lord (Lord Campbell), and proposed to refer it to a Committee of Privileges, instead of introducing questions personal and political in connection with it. But the noble Earl had coupled with this question 1769 the accusation against Her Majesty's Government of having acted in this matter without due consideration, and with having yielded to political pressure in the creation in question. To these propositions he (Earl Granville) could not agree. The noble Earl had stated the case accurately with regard to the Mountrath peerage, a very old peerage, created in 1660, which, before the Union, had had added to it the Castle Coote peerage, with remainder, in the latter case, to the collateral issue. With regard, however, to the accusation of having acted without due consideration in the present case, he (Earl Granville) assured the House that Her Majesty's Government had consulted the Irish law officers of the Crown. [The Earl of DERBY: Hear.] He (Earl Granville) hoped the noble Earl did not mean that cheer as an imputation that the Irish law officers of the Crown had been biassed in their opinions by political considerations; if he did, it would not advance his case a single iota, for Lord Palmerston subsequently consulted the English law officers of the Crown, and their opinion was the same as that of the Irish law officers. And, what was more to the purpose as regarded the noble Earl's cheer, the late Attorney General of that noble Earl's own Administration was also referred to in the matter, with the same results. He (Earl Granville) had seen the opinion of that hon. and learned Gentleman; and not only did he concur with the opinions of the Irish and English law officers of the Crown on the subject, but he actually went further, and adopted the whole argument used by the noble Earl as a reductio ad absurdum, his opinion being distinctly stated, that if the barony of Castle Coote had become extinct at the time of the earldom of Mountrath, there would be two distinct peerages extinct towards making up the three necessary for the creation of a new Irish peerage. The Government, therefore, could not be justly charged with having acted in this matter without due consideration. Then, as to the question of political pressure. The noble Earl had given a description of Mr. Roche, as a man once extremely violent against the Church Establishment, against the Union, and against Her Majesty's Government, but as having been of late years one of the staunchest supporters of the Ministry. He (Earl Granville) could not pretend to follow, with the same accuracy as the noble Earl, the votes of Mr. Roche in Parliament; but he 1770 believed that Mr. Roche had never been a violent man, in any sense, or upon any question, and had never changed the political opinions he once held; and moreover he understood that he was a man of old family and considerable fortune in his own country, and fit, therefore, in every respect, to be created an Irish peer. The noble Earl sneered at him as the claimant of an old title; but if Mr. Roche even had entertained extreme opinions some years since, the noble Earl was the last person in the world who should deny that a man holding extreme opinions at one period of his political career might not subsequently become an ornament of the Irish peerage. The noble Earl had described with great ingenuity how a promise was made, as he said, a year ago. He (Earl Granville) did not know whether such a promise had been made to Mr. Roche or not; but, if such a promise had been made, and if it could be shown that three Irish peerages had become extinct, so as to enable the Government to fulfil that promise, he (Earl Granville) could see nothing wrong in it. The noble Earl said the Government had been induced to act as they did because of the appearance of the claimant for the Netterville peerage; but the facts went the other way. If, however, the Government wished to make a peer of Mr. Roche for political reasons they might have done so in the Netterville case without any need of going to the Mountrath case, because the twelve months required by the Act for making such claim had fully elapsed. He (Earl Granville) had gone into the case, because he thought the Government were fully justified in the course they had taken. He was quite willing to assent to the Motion to refer it to the Committee of Privileges; but at the same time he must say that the noble Earl had dug out so many extinct Irish peerages, that unless the noble Earl's late Attorney General was completely wrong, the Prime Minister, it was to be feared, would have some difficulty in dealing with the numerous applications which would be made to him for peerages.
§ LORD ST. LEONARDS
thought the Government were seriously to blame for the course they had pursued on this occasion, even if they had deemed themselves in the right. It was no light matter to deal with questions of this nature, which were based, not upon individual contracts, but on a solemn compact made between two nations. They had wantonly raised the question at issue in the most offensive 1771 manner; for if they were fight at all they might as well have taken the last, or the last but one, extinction as the ground for the extension. As he understood the Act of Union, however, it referred to persons, and not to dignities; otherwise the death of one peer enjoying three dignities might be the occasion of the creation of a new peerage. He did not consider that it was possible for the Crown to exercise a right that had never before been exercised in this matter. He regretted the Government had taken the course they did—he thought it an ill-advised course. He also thought it was a very unusual course to state the opinions of the law officers of the Crown in justification of the Government on the point of law.
begged their Lord-ships to consider the position in which they were now placing themselves. They were about to refer this matter to a Committee, and it was agreed on all hands that sooner or later it might, he would say it must, come before the Committee of Privileges. He would not say that the law Lords would in such a case stand in a different position from any other of their Lordships—all were equal in that respect; but still everybody knew that in disposing of these questions, it was chiefly the law Lords who took part in the decisions of the House. He was quite aware that the noble and learned Lord who spoke last would say, that the opinion which he had given was a hypothetical one, and did not bind him after hearing counsel, and that he would be at perfect liberty to change his opinion when sitting judicially on the question; but if he (Lord Brougham) were the noble claimant, he must say he would rather have his counsel address a Judge who had not committed himself or quasi committed himself to any opinion on the subject. His noble and learned Friend had expressed a very decided opinion against the claim, but he (Lord Brougham) thought the case ought to be heard and decided by Judges who had not gone so far as his noble and learned Friend in intimating their opinion on the subject. He hoped, therefore, that this debate would not be continued, or, at all events, that noble and learned Lords, would not commit themselves to any opinion on either side, until the case was argued before them by counsel.
THE LORD CHANCELLOR
His noble and learned Friend was altogether wrong, if he supposed that in the few observations which he (the Lord Chan- 1772 cellor) was about to address their Lordships, he meant in the slightest degree to diverge from the very wholesome rule his noble and learned Friend had laid down, and which his other noble and learned Friend (Lord St. Leonards) commenced by stating that he should follow, though the whole tone of his speech was eminently, in point of practice, at variance with the principle on which he set out. He by no means wished to say that his noble and learned Friend had not taken a right view of the law; but upon that point he must reserve to himself the exercise of the most unbiassed and unfettered judgment when the case came judicially before him. There were one or two observations, however, to which he could not but call attention. The noble Earl (the Earl of Derby) had treated the clause in the Act of Union as a limitation upon the prerogative of the Crown. That he (the Lord Chancellor) conceived to be entirely wrong. The power of creating Irish peerages was, in fact, a new prerogative conferred upon the Crown, which never could make peers of Ireland when there was a United Kingdom of Great Britain and Ireland, just as, no such power having been given, it could not make peers of Scotland; but the Irish Act of Union gave the power to the Crown to promote in the Irish peerage existing peers and to create new peers, though not until three peerages had become extinct; and so from time to time. That then was the right of the Crown. His noble and learned Friend who had argued the case against Lord Fermoy, as he must call him, said, "Why raise the question in this way?" But, if it were the prerogative of the Crown to create peerages in such circumstances as the present, in what other way, he should be glad to know, could it be raised? There was no other mode of raising the question except by exercising the supposed prerogative of the Crown. Her Majesty had been advised that She might safely take that course; but that advice was not given until the opinion of the law officers of the Crown in Ireland, and certainly of one, if not both the law officers of the Crown in England, had been obtained, and it was found to be in conformity with the very decided and distinct opinion of the Attorney General of the preceding Government. Well, was not that a case in which the Crown might be safely and properly advised to create a peerage, and thus see whether it had the right or not? He trusted, then, that their 1773 Lordships, and especially the law Lords, would, when they came to hear the arguments upon the question, decide calmly and dispassionately, looking at all the clauses of the Act of Union, and that nothing which had passed to-night would tend to prejudice the right of any party.
§ LORD ST. LEONARDS
According to this method, poor Lord Fermoy would have to battle the case, in order to try the rights of the Crown.
THE EARL OF WICKLOW
was sorry the noble Earl the President of the Council had acquiesced in the proposition for a Select Committee, because by so doing he would prejudice the case of Lord Fermoy, who would be thereby deprived of the services of counsel, of which he could avail himself, if the case were simply brought before the House. He would have less objection to a Committee of Inquiry; though, even in that case, the consequences must be injurious to Lord Fermoy, when he came before their Lordships to claim the right of voting for representative peers. He would suggest to their Lordships, that the question could be discussed when Lord Fermoy appeared before their Lordships to establish his right to vote for representative peers.
said, he thought the question might be disposed of as had been just suggested; but he considered, at the same time, that the noble Earl opposite was justified in making the Motion before the House, because Lord Fermoy might refrain from bringing forward his claim to vote for representative peers. If Lord Fermoy presented a petition to be heard by counsel before the Committee, he was sure they would not hesitate for a moment to hear him by counsel.
§ THE EARL OF HARDWICKE
observed, that any opinion expressed by their Lordships in debate ought to have no influence with the Lord Chancellor and other noble and learned Lords, when the question came before them in a judicial capacity.
§ THE EARL OF DERBY
said that, as the Attorney General was in favour of the creation of the barony, it was not to be expected that the duty of opposing the claim of Lord Fermoy could be intrusted to him. He wished to know, therefore, what course would be adopted in reference to the opposition to it.
§ Motion agreed to.