rose to move that an humble Address be presented to Her Majesty praying that She would be pleased to relinquish Her prerogative and power of creating further Peers of Ireland conferred on the Crown by the Act of Union, and that the concurrence of the House of Commons be desired in such Address. The noble Earl said, that last year he sat upon a Committee appointed by their Lordships' House for the purpose of considering the state of the Representative Peerages of Scotland and Ireland and the Laws relating thereto. This Committee was so selected as to form a very fairly representative body, comprising, as it did, Peers of Scotland, Peers of Ireland, and Peers of the United Kingdom, with the last of whom, as disinterested in this question, the decision would practically rest; and after a careful deliberation they presented a Report, containing, among other things, the recommendation embodied in his present Motion. They reported their unanimous opinion that every addition to the Irish Peerage only increased and perpetuated the anomalous condition of that body; and they expressed their hope that Her Majesty might be advised to renounce Her undoubted prerogative of creating Irish Peers, with a view to the modification of the 4th Article of the Union. There were certainly points on which the Committee could not agree, but he saw in this no reason why they should not take 1211 practical action on one of the Committee's recommendations in which they were unanimous. One of the points on which they disagreed was a proposal made by his noble relative the Chairman of the Committee (the Earl of Rosebery), to the effect that in the election of Representative Peers the minority of the elective body should have a fair claim to representation. At one time he was so anxious to promote the representation of minorities that he seconded a proposal of his noble and learned Friend now on the Woolsack to insert a minority clause in the Reform Bill. But the three-cornered clause, as it was sometimes called, in the few instances in which it had been yet applied, had not worked so well as was expected in regard to the election of Members of the House of Commons, and he therefore saw no sufficient reason—at present, at any rate—for applying it to the election of Representative Peers. He thought it would be generally admitted that in this country it was not, as upon the Continent, usual to dissociate high titular rank from some share of political power. It was not here as where the Herr Graf of Vienna, the Monsieur le Duc of Paris, or the Signor Principe of Naples might fill a great social position without any political past combined with it. It was, in his view, important that in this country that association should continue; and, as he believed his opinion to be very generally shared by the public, he could easily understand that Irish Peers must be mortified to find themselves shut out from that share in public life which was enjoyed by Peers of the United Kingdom possessing equal titular rank. The position of Irish Peers as compared with Peers of the Imperial Parliament called to mind, by way of contrast, those fine lines of Virgil which were so aptly applied by Mr. Pitt when he proposed the Irish Union—Paribus se legibus ambæInvictas gentes æterna in foedera mittant.But could it be said at present that the "paribus legibus" was fully applicable to the Irish Peers? If their Lordships looked into history they would find that before the Act of Union it was customary to confer the Irish Peerage upon men totally unconnected with Ireland, and many of these persons were afterwards raised to the Imperial Peerage. 1212 Such had been the case, for instance, with his own grandfather, the first Lord Carrington; such had been the case also with the first Lord Auckland. But about the time of the Union the existing Irish Peers made it very clearly known that they objected to that exercise of the prerogative. On the 10th of March, 1800, Lord Cornwallis, as Lord Lieutenant of Ireland, wrote as followed to the Duke of Portland, Secretary of State:—So violent a spirit has arisen among the Lords, and even among those who are the best friends of Government, against the reservation of creating Irish Peers after the Union, that it is the general opinion of His Majesty's principal servants here that the clause cannot be carried. The language among the Peers is that they cannot abandon the interests of their posterity, that the persons hereafter to be created will be men of weight and influence in England, who will always succeed to the vacancies in the representation, and that the families of the ancient Peers will be reduced to a state of insignificance and contempt.Later in the same month Lord Cornwallis wrote again, using these words—I had signified to your Grace the extreme reluctance which a large proportion of the Peers, the most respectable and the most friendly to Government, had disclosed to agree to that part of the Article which permits His Majesty to retain the power of creating Peers of Ireland after the Union. Their repugnance went to the principle generally; there was no modification which they were really disposed to accept.In the result it was provided by the Treaty of Union that the power of the Crown to create Irish Peers should not be extinguished, but that it should be restricted to the creation of one new Peerage for every three that became extinct, until the number of Peers was reduced to 100, below which it was not to be allowed to fall. Following the history of the question down to the present time he could not but think the position of Irish Peers would be admitted to be anomalous and unsatisfactory—that it tended to produce a feeling of irritation, and to keep up a line of separation between the two Kingdoms: yet all parties for many years had been sincerely anxious that the people of Ireland should be not merely in name or law, but in feeling and sympathy, united to their brethren on this side of the Channel. As to the ill effect in this direction of the present law he could refer to no stronger nor more complete testimony than that of his noble Friend opposite (Lord Carlingford) in the former 1213 discussion of this subject. He had adopted the form of an Address to Her Majesty as being the most respectful course, and as in accordance with the preliminary step taken by Mr. Gladstone with regard to the disestablishment of the Irish Church. He would merely add that he was thoroughly disinterested in this matter, and that he brought it forward from no personal feeling, but solely by a desire to remove a grievance which was felt by his fellow-countrymen. He was convinced that so long as the present state of things existed, it was impossible for Ireland to feel that she was on a footing of equality with England.
Moved, That in case the House of Commons concur therein, the following humble Address be presented to Her Majesty:
Most Gracious Sovereign,
We, Your Majesty's most dutiful and loyal subjects, the Lords Spiritual and Temporal,
in Parliament assembled, beg leave humbly to represent to Your Majesty that a Select Committee of the House of Lords appointed in the last session of Parliament to consider the state of the Representative Peerage of Scotland and Ireland and the laws relating thereto, reported to the House of Lords their unanimous opinion as follows: "They are convinced that every addition to the Irish Peerage only increases and perpetuates the anomalous condition of that body; they would therefore trust that Her Majesty may be advised to renounce Her undoubted prerogative of creating Irish Peers, with a view to the modification of the 4th Article of Union:
We, therefore, concurring in the conviction then expressed, numbly pray Your Majesty that Your Majesty will be pleased to consent to a Bill being introduced into Parliament for amending the Act of Union with Ireland by taking away the power therein conferred upon the Crown with respect to the creation of Irish Peers.—(The Earl Stanhope.)
rose to assure their Lordships that there was no truth in the report that the Irish Peers, as a body, opposed this Motion. They were naturally desirous to get rid of the disabilities under which they laboured, and any effort to remove the present anomalous position of affairs must be taken in the direction indicated by the noble Earl (Earl Stanhope), to whom the Irish Peers were indebted for the action he had taken in the matter. He himself brought forward a Motion on the subject last year, but in deference to the general feeling of the House he did not press it to a division. Since then, however, a Select Committee had reported to the same effect, and he hoped that in 1214 view of this fact the Government would now declare their willingness to take up the question. There could be only two objections to this proposal—namely, reluctance on the part of Her Majesty to part with any portion of her Prerogative, or disinclination of Her Majesty's Ministers to resign any power of patronage which they possessed. He was certain, however, that Her Majesty would at once accede to the expressed wish of Parliament on the subject—so that there was no insuperable difficulty in that direction; and if the only obstacle was an indisposition on the part of Ministers to give up their patronage, he would only say that in his opinion the time had come when such patronage ought no longer to exist. If the Government opposed the Motion, he hoped they would at least give their reasons for doing so. Hitherto the Irish Peers had received no intimation on the subject, and he was somewhat surprised that morning at receiving a request to come down to oppose the Motion of the noble Earl, seeing that he had brought for a similar Motion himself last year. He hoped the noble Earl would succeed with his Motion.
THE LORD CHANCELLOR
My noble Friend the proposer of the Motion has, with that ability and oratorical power that always distinguishes him, pointed out to your Lordships the disadvantages under which, in his opinion, the members of the Irish Peerage now labour, and the manner in which, in his opinion, those disadvantages might be removed. If that appeared to me to be the only question before us, I should gladly have waited to hear what might fall from others of your Lordships on the subject, and not have intervened at the present stage of the discussion. But I am anxious thus early to point out to your Lordships, and to submit also to my noble Friend what appears to me to be a difficulty—and more than a difficulty—in the course which he has adopted. Considering the deep constitutional learning of my noble Friend, I think I shall not have much difficulty in satisfying him that the Motion he has proposed is one which, in the first place, it would not be in your Lordships' power to assent to, and, in the second place, which it would not be in the power of the Crown to comply with. I cannot but think some misapprehension exists with regard to the Report of the Select 1215 Committee on this subject. Under the seventh head of their Report it is stated—As regards the Irish Peerage, they would offer the following suggestions:—They are convinced that every addition to the Irish Peerage only increases and perpetuates the anomalous condition of that body. They would therefore trust that Her Majesty may be advised to renounce her undoubted Prerogative of creating Irish Peers with a view to the modification of the Fourth Article or the Union.This recommendation was embodied in a draft Report which was laid before the Committee, and although on other portions of the Report there were many discussions and some collisions of opinion, on this point there was no division and little, if any, debate. I cannot but think that if there had been a little more consideration, it might have appeared to the Committee that the words of that recommendation were such as could hardly be held to be appropriate to the case with which they had to deal. My noble Friend (Lord Inchiquin) who seconded the noble Earl who brought this subject before the House spoke again to-night in express terms of Her Majesty's relinquishing "her undoubted Prerogative," and the working of the Resolution which your Lordships are asked to adopt conveys a prayer to the Sovereign that she shall be pleased to relinquish her Prerogative and power of creating Irish Peers. Now, I am anxious to ask your Lordships to consider at the outset this question—is the mode by which Irish Peers are created in any sense or form an exercise of the Prerogative of the Crown? The importance of this question you will readily understand. It is not many years since a very warm discussion arose in this House—a discussion of which I am not at all anxious to revive the recollection on the present occasion. A course was taken by the late Government with regard to the Army, on which there was considerable debate as to whether the case involved the exercise of a Prerogative or of a statutory power given to the Crown. I reminded your Lordships at the time of how important is the distinction between the two. What is the Prerogative of the Crown? It is always dangerous to embark in definitions; but, for all practical purposes, I think the Prerogative of the Crown may be said to be that original inherent jurisdiction which resides in the Crown, and which 1216 continues to reside in the Crown, except so far as it is taken away or modified by any positive legislation, and except so far as the exercise of the Prerogative is tempered or controlled by the responsibility which exists under a constitutional form of government. Now let me remind your Lordships of the history of different parts of this country with respect to the creation of Peers. At present—as, of course, no person will dispute—the creation of Peers is a branch, and one of the most conspicuous, of the Royal Prerogative. There can, I suppose, be no question that when Scotland was an independent kingdom the creation of Peers there was a branch of that Prerogative; and the same observation applies to the case of Ireland. That being so, let me point out to your Lord-ships what occurred on the occasion of the Union of Scotland and England. There was then a Scotch Peerage in existence which had been created from time to time by the exercise of the Royal Prerogative. By one of the Articles of the Act of Union, as the House is aware, 16 Peers were declared to be the number who, as Representatives of the whole body, should sit and vote in the House of Lords. Then the 23rd Article of the Union provides that—All Peers of Scotland, and their successors to their honours and dignities, shall, from and after the Union, be Peers of Great Britain, and have rank and precedency next and immediately after the Peers of the like orders and degrees in England at the time of the Union, and before all Peers of Great Britain, of the like orders and degrees, who may be created after the Union, and shall be tried as Peers of Great Britain, and shall enjoy all privileges of Peers as fully as the Peers of England do now, or as they or any other Peers of Great Britain may hereinafter enjoy the same, except the right and privilege of sitting in the House of Lords, and the privileges depending thereon.What was actually done, therefore, at the time of the Union with Scotland was this—The Scotch Peerage was taken as it stood. All those who were Peers of Scotland were declared for the future to be Peers of Great Britain and to have the rights of Peers of Great Britain—with the one important exception of the right of sitting in the House of Lords; and as to that right it was only to be exercised by the 16 Peers who should be chosen as Representative Peers. Your Lordships will look in vain in any part of the Act of Union for any express prohibition against 1217 the Crown creating any fresh Peers of Scotland: but we, at the same time, perfectly well know that no such thing has been heard of as a Peer of Scotland having been created, or promotion in that Peerage having taken place since the Act of Union. What is the reason of that? It is not by virtue of any Act of Parliament, but for a very different reason. It is to be discovered in the fact that the authority by which a Peer of Scotland was created was a Prerogative right; but that Prerogative right was the right of a Sovereign of an independent Kingdom to create Peers of that Kingdom, and therefore, of necessity, when Scotland ceased to be a separate kingdom, the Prerogative which existed for a separate kingdom of itself came to an end, and required no enactment to put an end to it. It perished with the Union of Scotland with this country. Let us, in the next place, turn to Ireland and see what was done on the occasion of the Union with that country. It was first provided that persons holding temporal Peerages of Ireland existing at the time of the Union—Shall from and after the Union have Rank and Precedency next and immediately after all the Persons holding Peerages of the like Orders and Degrees in Great Britain subsisting at the time of the Union, and that all Peerages of Ireland created after the Union shall have Rank and Precedency with the Peerages of the United Kingdom so created according to the Dates of their Creations; and that all Peerages, both of Great Britain and Ireland, now subsisting or hereafter to be created shall in all other respects from the Date of the Union be considered as Peerages of the United Kingdom; and that the Peers of Ireland shall, as Peers of the United Kingdom, be sued and tried as Peers, except as aforesaid, and shall enjoy all Privileges of Peers as fully as the Peers of Great Britain; the Eight and Privilege of sitting in the House of Lords and the Privileges depending thereon, and the Eight of sitting on the Trial of Peers only excepted."—[39 & 40 Geo. III. c. 67.]In that ease, up to a certain point, the precedent of Scotland was followed. The Act of Union takes those who at the time were Peers of Ireland and declares that from that time forward they shall be considered as Peers of Great Britain in all respects but that of sitting in the House of Lords; but it extends that right to those also who should afterwards be created under a power to which I shall by-and-by have to refer. If the Act of Union with Ireland stopped there, the consequences would be just the same as occurred in the case of Scotland. There 1218 would have been an end of the power of creating Irish Peers, and it would have required no statutory power to bring it to a termination. But what the Act of Union did beyond that was this—it did not preserve any Prerogative right, because it could not, for that on which the Prerogative was founded—a separate Kingdom—was gone—what it did was to create a new and special statutory power to be exercised for declared statutory objects. That statutory power was as follows:—That it shall be lawful for His Majesty, His Heirs and Successors, to create Peers of that part of the United Kingdom called Ireland, and to make Promotions in the Peerage thereof, after the Union; provided that no new Creation of any such Peers shall take place after the Union until three of the Peerages of Ireland which shall have been existing at the time of the Union shall have become extinct; and upon such Extinction of three Peerages that it shall be lawful for His Majesty, His Heirs and Successors, to create one Peer of that Part of the United Kingdom called Ireland, and in like manner so often as three Peerages of that part of the United Kingdom called Ireland shall become extinct, it shall be lawful for His Majesty, His Heirs and Successors, to create one other Peer of the said Part of the United Kingdom; and if it shall happen that the Peers of that part of the United Kingdom called Ireland shall by Extinction of Peerages or otherwise be reduced to the Number of 100, exclusive of all such Peers of that part of the United Kingdom called Ireland, as shall hold any Peerage of Great Britain subsisting at the time of the Union, or of the United Kingdom created since the Union, by which such Peers shall be entitled to an Hereditary Seat in the House of Lords of the United Kingdom, then, and in that case, it shall and may be lawful for His Majesty, His Heirs and Successors, to create one Peer of that part of the United Kingdom called Ireland as often as any one of such one hundred Peerages shall fail by extinction, or as often as any one Peer of that part of the United Kingdom called Ireland shall become entitled, by Descent or Creation, to an hereditary seat in the House of Lords of the United Kingdom."—[39 & 40 Geo. III. c. 67.];Then comes a general Proviso at the end—It being the true intent and meaning of this Article, that at all times after the Union it shall and may be lawful for His Majesty, His Heirs and Successors, to keep up the Peerage of that part of the United Kingdom called Ireland to the number of one hundred, over and above the Number of such of the said Peers as shall be entitled by Descent or Creation to an hereditary seat in the House of Lords of the United Kingdom."—[39 & 40 Geo. III. c. 67.]The reading of this Article will have satisfied your Lordships that what was done was this:—The Act of Union did not regard the Prerogative of the Crown 1219 as continuing to exist, because in point of fact it would be as absurd to create by virtue of the Prerogative a Peer of Ireland as a Peer of Yorkshire or of Wales. The Prerogative, as I said before, ended with the termination of a separate kingdom; but there was given by the Act a statutory power for statutory objects to create Peers who would fill up vacancies in the Peerage of Ireland, for the purpose of keeping up a constituent body to elect those Peers who were to be their Representatives in Parliament. It was, of course, quite open to Parliament at the time to have adopted a different course. They might have said the power of creating Peerages for the future shall come to an end; we shall provide a means by which there shall be Representative Peers. That was the proposition which found favour at that very time with some persons of very considerable distinction. I hold in my hand an extract from a Protest signed in the Irish Parliament by the Duke of Leinster and 19 other Peers of Ireland in the year 1800, against the arrangement in the Articles of Union which I have read. The Protest says—That by the provision in the Bill for a constant creation of Peers for Ireland the Irish Peerage is to be kept up for ever, thereby perpetuating the degrading distinction by which the Irish Peerage is to continue stripped of all Parliamentary functions. That the perpetuity of such distinction would have been avoided by providing that no Irish Peer should hereafter be created (which is the case of Scotch Peers), and that whenever the Irish Peers shall be reduced to the number of 28 they should be declared Peers of the United Empire, agreeably with the British, from which time all national distinctions between them should cease.That, as I understand, is the proposition which finds favour in the eyes of my noble Friend; and it was prominently brought before those who had to deal with the arrangements made at the time of the Union. I find that, when Mr. Pitt brought before the House of Commons the King's Message on the Articles of Union, he made some observations on the Articles of Union with reference to the election of Irish Peers. He said—The next point is, the power reserved for His Majesty to create new Peers. The objection is, that they may be too large for the constituent body, and occasion a great deal of inconvenience to that which is elective. To this I answer, that they can never exceed a given number, and that it is necessary to give this power to the Crown; for that the titles in Ireland are under very different circumstances 1220 from those of Scotland. In Scotland, the titles of nobility are much more ancient, under very different limitations, and must, from that very difference of limitation, continue much longer than those of Ireland; in the one, the titles are to descend to collateral branches, in the other, the patents are more limited, are confined to immediate male descendants, and consequently must much sooner expire. In the one, the probability of extinction is very small in the course of a vast period of time; in the other, it would certainly happen in a short time, if the power of adding to or making up the number, were not given to the Crown."—[Parl. Hist. xxxv. 50, 51.]I do not desire to give any opinion as to the policy of what was done at the time of the Union; but your Lordships may gather from that extract from the speech of Mr. Pitt that a prominent subject placed before Parliament was the policy of keeping up the body. I desire also to put before your Lordships some further considerations in regard to the manner in which it became necessary at the time of the Union to deal with the Irish Peerage. You will find it very interesting to compare the way in which the Crown acts in the creation of an Irish Peerage and the way in which it acts in the creation of an English Peerage. I shall not weary your Lordships by reading the whole of the patents, but I may take the liberty of reading the introductory words of the ordinary patent of an English Peerage. They are these—Victoria, by the grace of God, of the United Kingdom of Great Britain and Ireland Queen, Defender of the Faith, to all Archbishops, Dukes, Marquises, Earls, Viscounts, Bishops, Barons, Knights, Provosts, Freemen, and all other our officers, ministers, and subjects whatsoever to whom these presents shall come, greeting. Know ye that We, of our especial grace, certain knowledge, and mere motion, have advanced, preferred, and created our right trusty and well-beloved Councillor, A.B., to the state, degree, dignity, and honour of, &c.That is the form of the creation of an English Peerage by virtue of the Prerogative. Now, how is an Irish Peerage created? I find from the book in your Lordships' Library that in the case of the creation of Lord Fermoy's Peerage, which was the subject of discussion, that the patent commences by reciting the Act of Union and the power given by that Act under the section which I have quoted to your Lordships, beginning with the words—"It shall be lawful for His Majesty," and then, after referring to the Peerages having become extinct, which gave rise to the appointment of a new Peer, it goes on to say— 1221Whereas the said Peerages respectively have become extinct, now know ye therefore that We, of our special grace, certain knowledge, and mere motion.… in pursuance of the before-mentioned Act, whereby it was made lawful for Us, our heirs and successors, to make such promotions in the Peerage of that part of the said United Kingdom called Ireland, have advanced, preferred, and promoted, and by these presents, for Us, our heirs, and successors, We do advance, prefer, and promote," &c.Your Lordships will observe the distinction between the two cases. In the one case you have the exercise by the Crown of a clear and distinct Prerogative; and in the other you have the mere execution of a statutory power devolved on the Crown in certain particular instances. It might be interesting that I should quote to your Lordships an extract from another document on the same subject. The opinions of Her Majesty's Judges were requested by your Lord-ships on the question of the regularity of Lord Fermoy's appointment, and they were printed, and are now in your Lordships' Library. They are of considerable length; but I will read a few sentences from the opinion of Sir John Coleridge in regard to the position of the Crown under the Act of Union. Sir John Coleridge said—The effect of the First Article of the Act of Union was necessarily to determine the ancient Prerogative of the Crown as to the creation or promotion of Peers for Ireland, and had the Third Article been left to stand alone it might have been reasonably contended that the then existing Irish Peerage would have been thereby united to that of Great Britain, and that all the then existing Irish Peers would have become Lords of the Parliament of the United Kingdom. Both these consequences were to be provided against or modified. The regulations as to the Prerogative I shall consider presently; those as to the Peerage itself were very important. The Irish Peers, as such, were no longer to be Lords of Parliament; they were to be at liberty even to forego the rights and privileges of Peerage, and become for a time substantially Commoners, sitting as Commoners in the Lower House, with all the liabilities and qualifications of Commoners—a thing entirely inconsistent with the general law of Peerage. Such of them as did not elect that course were to form a constituent body, out of and by which 28 Lords of Parliament were to be elected for life to represent the Lords Temporal of Ireland in the Parliament of the United Kingdom; and the normal number [it would, perhaps, be more accurate to say the minimum number] of that constituent body, to be arrived at surely and gradually, was to be 100. So much being premised, I proceed to consider that part of the Fourth Article which gives the power of creating such Peers as I have been describing, and 1222 making promotions in the Irish Peerage thus constituted.He continues—The section concludes with an express statement of the true intent and meaning of the whole Article as to this matter of the Peerage. 'It being the true intent and meaning of this Article that at all times after the Union it shall and may be lawful for His Majesty to keep up the Peerage of Ireland to the number of 100, over and above the number of such of the said Peers as shall be entitled by descent or creation to an horeditary seat in the House of Lords of the United Kingdom.' These words intimate, I apprehend, in the decorous language suitable in regard to the Crown, not only the power but the duty of the Sovereign to keep up the Irish Peerage to the full number of 100, when it shall have been reduced to that number, as the preceding specific provisions had virtually restrained the Sovereign from creating Peers so as to exceed it. And this is precisely what might have been expected, when such a constituent body was to be formed, out of which a, definite number of Lords of Parliament were to be elected. It was fitting that there should be such a numerical proportion between the electors and elected as to make the election free and respectable, out of the reach of all external influences, and also that the proportion should be fixed and always maintained; that the numbers might not for any indirect purposes be allowed to diminish or be subject to sudden additions, so that the people of Ireland should have guaranteed to them at all times a proportion of the House of Peers elected from a known, certain, and sufficient body of their own peculiar Peerage.Again, I say, it is not for me to detain your Lordships with any comments as to whether this was a wise or an unwise policy. I cannot show more clearly than is done by the words of Sir John Coleridge, that the purpose of the provisions of the Act of Union was to keep up a constituent body of a certain character and of a certain size, and that with that object there was not only a right conferred, but also a duty imposed on the Crown. Now, if that is so, I ask your Lordships to consider what is the consequence. We have got here a statutory trust created and reposed in the Crown for a particular object which Parliament has deemed it desirable to maintain. My noble Friend who moved and my noble Friend who seconded this Motion propose that Parliament should address Her Majesty, asking Her Majesty—to do what? To relinquish a Prerogative of creating further Peers of Ireland conferred by the Act of Union. But in so far as the existence of a Prerogative is concerned, I think I have satisfied your Lordships that there is an 1223 entire misapprehension on the point, and that in this case there is no Prerogative whatever. A power of creating Peers was given by the Act of Union, but it was a statutory power, not to be exercised at the caprice of the Crown—not to be exercised as the Crown might desire or might not desire. It was a statutory power created for the purpose of keeping up a constituent body who were to elect the Irish Representative Peers. That being the case, how can it be suggested that the Houses of Parliament should ask the Crown to suspend the operation of that power? But that is what my noble Friend asks. My noble Friend proposes that the two Houses of Parliament should join in asking the Crown to relinquish a power which is in reality a duty created by Act of Parliament. Can such a proposition be gravely entertained? I have that confidence in the constitutional wisdom of my noble Friend that when the case is put before him clearly, as I have endeavoured to do, he will himself be the first to say that, whatever his opinion may be as to the position of the Irish Peerage, or as to the changes which ought to be made in it, it is quite impossible that those changes can be brought about through the medium of an Address, asking the Crown to do that which it would not be in the power of the Crown to do. My noble Friend may say—"Can nothing be done?" Of course, that which has been done by legislation can be changed by legislation. A power which has been created by Act of Parliament can be altered by Act of Parliament. It may be—although I am not expressing any opinion on the point—that the assent of the Crown might have to be signified in some special manner to any Bill on the subject which might be introduced. But it must be in reference to a Bill that the assent of the Crown is solicited; and the question raised has not reference to an Act of Parliament, but to an Act of the Crown. My noble Friend referred to the course which was taken in 1868 with regard to the Irish Church. In that case, however, there was this distinction—that the interest which had to be dealt with, and which created the difficulty, was in the nature of a personal interest of the Crown in the temporalities of the Irish Church. On that occasion the Address distinctly asked the Crown to place that interest at the disposal of Parliament, 1224 for the purposes of legislation in the current Session, and the Answer framed in accordance with the terms of the Address, expressed a desire that the interests of the Crown should not stand in the way of legislation. But that was a definite Address made to the Crown for the purpose of carrying out a definite proposition—an entirely different thing from that we are now asked to sanction. There is, therefore, no analogy between that case and the present. As I have said, I will not enter upon the general question of the expediency of making changes in the position of the Irish Peerage. That is a matter on which a good deal may be said; but it appears to me that this is not the time for that discussion. I submit to your Lordships that the Motion of my noble Friend is one which cannot be entertained, and that, if it were assented to, it certainly could not be acted upon by the Crown.
§ EARL GRANVILLE
presumed that it was not the desire of the noble and learned Lord to stop all further discussion on this important subject. He would not repeat the arguments of the noble Earl who had introduced the Motion; possibly there were answers to all these; but if there were, they had not been produced in the speech of the noble and learned Lord. In regard to the feeling of the Irish Peers, the noble Earl (Earl Stanhope) had quoted the despatches of the Viceroy of that time, showing his dislike and that of the whole Irish Peerage to the clause as proposed—so much so that Lord Cornwallis thought it would be impossible to pass the clause. But a majority of the Peers of that time were induced to pass it. On the other hand, the noble and learned Lord on the Woolsack had quoted the indignant protest of the minority. Well, he (Earl Granville) believed that the majority of the Peers at the present moment were of the same opinion as that minority. Among the Members of the Committee of last year, which had conducted an inquiry with reference to the Scotch and Irish Peerages, and which had been presided over with remarkable ability by the noble Earl behind him (the Earl of Rosebery), there was a great difference of opinion upon many points; but in the recommendation to which attention had been called on the present occasion, there had 1225 been perfect unanimity. The noble and learned Lord on the Woolsack had given the House a very learned argument as to the form of the Motion which had been proposed, but had given no opinion whatever as to the policy of the existing law. Now, what was wanted—and what he was quite sure his noble Friend the President of the Council, with that courtesy which he always showed to the House, would accord to them—was an intimation of the opinion of the Government as to the policy apart from the form of the Motion. If they disagreed with the noble Earl, and if it was their intention to maintain the law as it stood, let the House know it, and let them discuss it. If, on the other hand, they concurred with him as to the policy, there would be no great difficulty in coming to an agreement as to the best manner of bringing about a change.
said, that the elaborate speech of the noble and learned Lord on the Woolsack, instead of showing any grounds for rejecting the Motion, had added to the strength of the case in its favour. No doubt the noble and learned Lord was quite right in all he had said as to the distinction between Prerogative and statutory power; but this was only an additional reason for adopting the Motion, since even if there were a difficulty in dealing with the former there could be none in dealing with the latter. When the noble and learned Lord showed that the Motion dealt not with a Prerogative but with a statutory power, he clearly showed also that a power granted by statute might be altered by statute; and he (Earl Grey) had understood, as a matter of course, that the Address was intended as a preliminary to legislation. Of course the statutory power could only be altered by legislation; but he had always understood that no power of the Crown, whether derived from Prerogative or from statute, could be properly dealt with by Parliament without the assent of the Crown to its being so dealt with having been first signified through its responsible Ministers. That, he believed, was a well-known rule of Parliament. Therefore, if it was desired in the present case to restrict the power of the Crown, the first step was to ask Her Majesty to consent to some limitation being placed upon that power, and that was all that the Address of the noble Earl proposed to do. A mere verbal 1226 alteration in the terms of the Address proposed would at once meet the objections to it that had been raised by the noble and learned Lord on the Woolsack. Last year the Motion of the noble Lord (Lord Inchiquin) was for an Address—praying Her Majesty to consent to a Bill being introduced limiting the Prerogative of the Crown in so far as it relates to the creation of Irish Peerages, as provided by the Act of Union"—if, therefore, the present Address were modified so that it should pray Her Majesty to consent to the introduction into Parliament of a Bill for amending the Act of Union so far as it regarded the creation of Irish Peers there could be no possible objection to it. This question had been shuffled aside last year in a way that surpassed his comprehension, but which clearly indicated a general indisposition to consent to the change; while, at the same time, it was not possible to find any plausible reason for objecting to it. It seemed as though the same was the case at the present moment. What was the reason of the studious care with which the Government had abstained from arguing this subject on its merits, while they had treated the House to a long and elaborate exposition of the technical law relating to it, and why had they not adopted the legitimate course of moving an Amendment to the Address proposed by the noble Earl, instead of simply advising the noble Earl to withdraw it? He trusted that this Motion would not be met in such an indirect manner, but that if Her Majesty's Government intended to contest it, they would state the grounds openly and fairly upon which they proposed to retain for the Crown a power which was almost universally condemned. If Her Majesty's Ministers shrank from maintaining this anomalous power in the hands of the Crown, he asked them at once to concur in the proposal he had made of amending the Address moved by the noble Earl, so that it would be freed from all technical objection.
§ THE MARQUESS OF SALISBURY
My Lords, precisely what we wish in this matter is that the course which the House and the noble Earl desire to take should be frankly and openly stated. The noble Earl who has just sat down (Earl Grey) has, without having given Notice of his intention to do so, suggested a modification 1227 in the terms of the Address which would perhaps, meet the objection of the noble and learned Lord on the Woolsack; and I am prepared to admit that if we look upon this Address as pledging us no further than the noble Earl has indicated, there is nothing in the nature of this statutory power which should incline the Crown to value it so much as to induce it to interpose its veto upon any legislation upon this question that might be proposed. But it is not merely for the purpose of procuring the consent of the Crown to Parliament dealing with this statutory power that this modified Address is proposed—it is clearly proposed with a view to some ulterior steps being taken by way of legislation. [Earl GREY: "Hear, hear."] Well, but before we commit ourselves to your policy on this question we should like to know what that policy will be. The legislation you suggest will not only lead to the repeal of what you call this anomalous statutory power, but it will involve your going much beyond what you now indicate as your object; because we are told that there is a great grievance under which the Members of the Irish Peerage are suffering, and if you merely stop the supply of fresh Irish Peers, at what date do you imagine that the relief you desire to afford will reach the sufferers? At the time of the Union the number of Scotch Peers was 132, and it is now 34; while the number of the Irish Peers at present is 105; so that speaking roughly my impression is that, assuming that the Irish Peerages will disappear at the same rate as those of Scotland have done since the Union, in the event of the legislation foreshadowed by the noble Earl's Address taking place, you would reduce the number of Irish Peerages to the number of 28 in about a century and a half from the present date. Is it, therefore, really worth while for us to legislate for a date so distant as that? Do you imagine that our peculiar arrangements are so stable and so certain in their nature that it is worth while in-fusing into our debates on this question that fire and earnestness that have been exhibited by the noble Earl who has just sat down in order to bring about a redress of a grievance which will reach the sufferers a century and a-half from this time? If you wish, therefore, that your proposal should have any substantial result you must supplement it by further 1228 legislation in the same direction; and the only possible step by which you can follow it up is by at once bringing all the Irish Peers into this House. When you have introduced these 105 Irish Peers into the House you will be compelled to admit the 34 Scotch Peers also; and deducting from the total the number of Scotch and Irish Nobleman who now have seats here as Representative Peers, you will thus bring in about 100 additional members of the Scotch and Irish Peerages. But what will be the result of such a step? You will, of course, have to proceed by legislation, and you will have to ask the House of Commons to indicate to the Sovereign, by Act of Parliament, what are to be the next 100 creations of Peers of this House which the Crown is to make. Is it not possible that the House of Commons may say, "No doubt, these 100 gentlemen are exceedingly estimable and worthy members of society, but we are not sure that they are the only persons that ought to be admitted to the House of Lords, and if we are to invoke new powers of legislation, we should like to know whether it is not possible to reconstitute the House of Lords upon other points as well as upon this one." The objection may also be raised that when the Union was entered into the principle was adopted that some kind of balance was necessary in the supply of legislative power as between England, Scotland, and Ireland—and can that balance be safely disturbed? Can you make this great addition to the legislative power of Scotland and Ireland in this House without at the same time increasing the number of English Peers? If you admit these 100 Scotch and Irish Peers you will have to admit a due proportion of new English Peers—I should say to the number of about 200. Are your Lordships prepared to send down to the House of Commons a Bill for increasing the House of Lords by 300 new Members? And let me remind your Lordships that such a question, if raised, would have to be discussed elsewhere, where the atmosphere is, perhaps, not so cool and free from all prejudice in the matter as it is here. But that is not the most serious part of the matter. What is the statute which we are to modify? The statute of 1800 determines the proportion in which Ireland and Great Britain should take their share of legislative power. At the time it was 1229 passed there were persons who claimed that Ireland should have had a larger share in the Legislature; but their opinions were overruled, and the respective proportions of the legislative power of the three countries were fixed as they now stand. But it is now proposed that we should rip open this question, and that we should take to pieces the agreement that was come to between Ireland and Great Britain and re-construct it, and that we should say that the share of legislative power, as far as the House of Lords is concerned, given to Ireland in 1800 is anomalous and unjust, or at least objectionable. I ask you whether you think that this question will be considered alone. If you want to revise the agreement that was entered into between the two countries in this respect, do you think that no one will wish to revise it on other points also? Do you think that no one will say that the share that Ireland has in the House of Commons as well as in the House of Lords is not that to which she is entitled? Let me tell your Lordships, therefore, that by assenting to this proposal you would be opening a very large and formidable question indeed. Under these circumstances, let us boldly say that we decline to pledge ourselves to any piecemeal or isolated legislation in this direction, or to bring forward unnecessarily into the arena of discussion a matter upon which it may well be thought the dearest interests of the country depend.
THE EARL OF ROSEBERY
said, he thought the course the debate had taken justified him in the reply he had given a few days since to his noble Relative (Earl Stanhope), to the effect that any step to be taken in this matter ought to be proposed by the Government of the day; and he thought, also, the Motion itself was congratulatory to himself, and fully justified by the result of the Select Committee. It had been hoped that the subject would be taken up by the Government, and he regretted that Her Majesty's Ministers had never since last year, when the subject was before their Lordships' House, broken the Sphynx-like silence which prevailed as to what their policy was—if, indeed, they had any policy in reference to this question. The noble and learned Lord on the Woolsack had treated them to a dissertation on Constitutional Law, and had read the Committee a severe lecture upon the use 1230 of the word "prerogative;" but what did the next highest authority in the House say last year upon the discussion of a Motion similar in substance, though not in form, to the present? The noble Duke the President of the Council said—The noble Lord must not forget that he was virtually asking Her Majesty to put a material limitation on Her prerogative, and to disturb a distinct arrangement come to at the Union of the two countries.But the noble Duke did not stop there, for he said that he did not think a case had been made out on which the Crown should be asked to waive its present prerogative; and that if the Motion were agreed to, and a Bill were introduced to limit the prerogative of the Crown in the manner proposed, and an absorption of Peers was to follow, the change ought to be proposed on the responsibility of the Government of the day, and not on that of a private individual. Well, no step was taken on the subject by Her Majesty's Government; and the other day, when a noble Relative of his, in the hope of eliciting some expression of opinion on the subject, called attention to it, no voice from the Ministerial bench was heard. It was urged that it was the duty of the Government to come down to the House and propose a remedy—but no voice was heard in response. And, now, three times the word "prerogative" was used by the noble Duke; and how, he asked, was it possible for the unhappy sheep of the flock to look for guidance to such a shepherd? The noble and learned Lord on the Woolsack summed up his speech by telling their Lordships that it was not a matter of Prerogative, but a matter of necessity and duty on the part of the Crown to create those Peerages. If that were so, and that their creation was admitted to be an evil, how could the Government come down and say that they were not prepared to remove the necessity and the duty, and thus to remedy the evil? The noble Marquess opposite (the Marquess of Salisbury), whose utterances did not usually fail on the side of distinctness, had addressed their Lordships without giving them any intimation as to the policy of the Government. Seeing that since the Act of Union the Irish Peerage had continuously dropped off, he hoped the discussion would not close without their Lordships having some 1231 information as to the mind of the Government in reference to the Motion.
§ THE EARL OF FEVERSHAM
said, he had not heard a single argument in favour of the proposed Address to the Crown. The Irish Peers were very highly respected in their Lordships' House, and so likewise were the Peers of Scotland; and in the House of Commons the Irish Representatives were a strong and influential party. He might refer to the late Lord Palmerston, who sat as an Irish Peer in the House of Commons, and who conferred great lustre upon that Assembly. He was opposed to any restriction of the Prerogative of the Crown. It had been said that the condition of the Irish Peerage was anomalous; but no anomaly had been proved. The number of Irish Peerages created within the last 20 years had not been stated, and it had not been shown that any grievance whatever existed on the subject. The privileges and power of the other House of Parliament were becoming every day greater, and the present was not a time to restrict a Prerogative of the Crown which had been in existence so long, and which had not proved to be disadvantageous to any part of the United Kingdom.
pointed out that at least two grievances existed. The first was that of an Irish representative Peer who had a son sitting, perhaps, in the other House of Parliament. The second grievance was that of Irish Peers who, not being able to sit in the House of Lords because they were not Peers of Parliament, were not allowed in the House of Commons to represent Irish constituencies among whom they might find seats, but were compelled to seek seats in England, where the task was much more difficult.
said, the noble Marquess (the Marquess of Salisbury) was in error in supposing that the Peers primarily interested were not prepared to accept anything short of a Bill dealing comprehensively with the whole subject. They were prepared to accept the proposal of the noble Earl, in the belief that it would check an existing evil.
§ LORD CARLINGFORD
denied the assumption of the noble Marquess opposite that the Committee recommended in substance a stoppage in the creation of Irish Peers until the number had fallen 1232 to 100, who should be forthwith created Peers of the United Kingdom. The Committee were possessed with no such wild idea. Their sole desire was that the anomaly of inferior Peerages attached to one part of the Empire should be put an end to. They recognized the fact that the anomaly could not be at once terminated, but they desired that it might not be maintained and perpetuated.
§ THE EARL OF MALMESBURY,
speaking as a Member of the Committee, said, they did not at the time when they drew the paragraph in the Report to which reference had been made, consider the difference between a prerogative and a statutory power. The noble Earl (Earl Stanhope) had brought forward his Motion at a most inopportune time; and, further, he had only attempted to deal with one of a numerous body of recommendations covering a very wide field. For his own part, he thought the noble Marquess had not at all exaggerated the importance and width of this question; but, at all events, if it was necessary to consider it, it should have been introduced at an earlier period of the Session.
said, he must confess his great disappointment at the way in which his proposal had been met by Her Majesty's Government. He thought it would be unfair to the body of Irish Peers, who were almost unanimous in favour of his Motion, if the proposal was to be rejected on account of the fact that as it was drawn it asked Her Majesty to part with her "Prerogative," whilst the word should more correctly have been "power." Whether the one or the other it did not in the least affect the argument against the unsatisfactory working of the present system. But to meet the objection he would gladly avail himself of the suggestion offered by the noble Earl on the cross-benches (Earl Grey), and so amend his proposed Address as that it should ask Her Majesty's assent to the introduction of a Bill for amending the Act of Union with Ireland by taking away the power therein conferred upon the Crown with respect to the creation of Irish Peers.
§ THE DUKE OF RICHMOND
I have been so pointedly alluded to by the noble Lord and noble Earl opposite that I desire to say a few words on this subject. 1233 It will not be necessary for me to touch upon the Motion of my noble Friend in its original form, because the fact of his having substituted for it the amended Motion he has just laid before the House is an admission on his part that he cannot justify his first proposal. The noble Earl who presided over the Committee (the Earl of Rosebery) took Her Majesty's Ministers to task, and said none of them had condescended to address the House on this occasion.
THE EARL OF ROSEBERY
I beg pardon. What I said was that two Members of the Government had condescended to do so.
§ THE DUKE OF RICHMOND
Well, I think that is a more offensive way of putting it. Any one reading the noble Earl's speech would suppose that it was not the practice of the Government to come forward and state fully and fairly their views on the subject-matter of debates in this House, and I venture to say that such a comment on their conduct is not deserved. I may have been wrong in my use of the word "prerogative" as the noble Earl points out, but the word was used casually, and if I had been drawing up a Motion to deal with this subject the authorities I would have consulted would no doubt have set me right. As to the subject of the discussion itself, I think, if I may judge from the tone of the House, the majority of your Lordships are of opinion that some Motion should be passed in the direction indicated by the noble Earl behind me (Earl Stanhope). I cannot accept the words which, even in his amended proposal, the noble Earl has suggested; but I do not desire to oppose a Motion which, getting rid of any technical difficulty in the way of considering this question, will not, at this stage, commit the House to any expression of opinion upon it. I would suggest to the noble Earl to move—That an humble Address he presented to Her Majesty praying that the power conferred on Her Majesty under the Act for the creation of Irish Peers may not stand in the way of any consideration by Parliament of any measure relating thereto which may be introduced in the present Session.
§ EARL GRANVILLE
characterized the act of the noble Duke as a graceful acquiescence in the policy recommended by the noble Earl (Earl Stanhope) and generally approved by the whole House.
§ After short conversation, on the Motion of Earl STANHOPE, it was agreed that the words "in the present Session" should be omitted from the proposed Amendment.
Then the said Motion (by leave of the House) withdrawn.
Then it was moved, That an humble Address be presented to Her Majesty, praying Her Majesty that the power conferred on Her Majesty under the Act of Union for the creation of Irish Peers may not stand in the way of the consideration by Parliament of any measure relating thereto that may be introduced.—(The Earl Stanhope.)
§ House adjourned at half past Seven o'clock, to Monday next, a quarter past Two o'clock.