Lord Chancellor, Earl of Clare, even more...

Chapter XLVII.

Life of Lord Chancellor Earl of Clare, Continued.

I now approach the great question which tended for the time to endanger the relations between England and Ireland, and, divested of all the colouring to be given by high-sounding phrases and questions of State policy, it is not very creditable to find how much party spirit, and a desire to hold the reins of Government, were mixed up with the sad affliction which had befallen the King. In 1788 the subjects of the Empire became aware of the melancholy fact that his Majesty King George III. had lost his reason. [He had been afflicted with temporary insanity in 1765, but the fact was concealed from the public. - Lord Campbell’s Lives of the Chancellors of England, vol. v. p. 581].] It was necessary to place him under restraint, and the eminent physicians, Doctors Willis and Warren, with others, attended his Majesty.

Mr. Pitt, then Prime Minister, felt reluctant to entrust the Prince of Wales, who of course was heir apparent, with a Regency unfettered by conditions. The Prince was supposed to have shown such a predilection for the Whig party, that Pitt, and his colleagues, felt their tenure of office depended upon restricting the power of the Prince Regent, and he and his party spread this notion amongst the people. The Whig party, led by Charles James Fox, and, it is said, advised by Lord Loughborough, then Chief Justice of the Common Pleas, but expecting to be Lord Chancellor under the Regency, [Life of Grattan, vol. iii. p. 342.] insisted that the Prince should not be restricted, that he had as clear a right to assume the reins of government unfettered as if his Majesty had undergone a natural demise. The Chancellor of England, Lord Thurlow, was in deep perplexity. He did not wish to resign the Great Seal, and he was in this dilemma. If he sided with Pitt he was sure to be displaced by the Prince Regent on the first opportunity; if he went against Pitt, he was not quite sure that he would be allowed to retain office, as Lord Loughborough had strong claims on the Whig party. [Wedderburn, one of the most eminent advocates of the English Bar, became Solicitor-General in 1771, Attorney-General in 1778, Chief Justice of the Common Pleas in 1780, with the title of Lord Loughborough. In 1793 he became Lord Chancellor, and in 1801 was advanced in the peerage as Earl of Rosslyn. He opposed the repeal of 6 Geo. I. c. 5.] Lord Thurlow was sounded by the Prince’s party, who wished to gain so learned an ally, and his Lordship showed a disposition to encourage the Prince to hold out for unrestrained powers. With a keen eye to his own security, Lord Thurlow required a distinct promise that he should retain the Great Seal in the event of the Regency, and an effort was made to induce Lord Loughborough to forego his claim, and his reply conveys a very strong hint that no reliance whatever was to be placed upon Lord Thurlow, ‘I think he will find the key of the backstairs, and with that in his pocket, take any situation that preserves his access, and enables him to hold a line between different parties. In the present moment, however, he has taken a position that puts the command of the House of Lords in his hands.’ [Lord Campbell’s Lives of the Chancellors of England, vol. v. p. 585.] The result of the negotiations was, that if Lord Thurlow supported the Prince’s party in Parliament he was to retain the Great Seal. Mr. Pitt was too sagacious a Minister, and too familiar with the movements of parties not to be aware of Lord Thurlow’s duplicity, and he employed Lord Camden to manage the Regency in the House of Lords.

Mr. Pitt wrote to the Prince, ‘It was the opinion of the Ministry that his Royal Highness should be empowered to exercise the Royal authority in the name and on behalf of his Majesty, during his Majesty’s illness, and to do all acts which might be legally done by his Majesty, with provisions nevertheless, that the care of his Majesty’s royal person, and the management of his Majesty’s household, and the direction and appointment of the officers and servants therein, should be in the Queen, under such regulations as should be thought necessary. That the power to be exercised by his Royal Highness should not extend to the granting, for any other term than during his Majesty’s pleasure, any pension or any office whatever, except such as must by law be granted for life, or during good behaviour, nor to the granting any rank or dignity of the Peerage of this realm to any person except his Majesty’s issue, who shall have attained the age of 21.’ [Grattan’s Life, vol. iii. p. 352.]

These were the principal stipulations suggested by the King’s Ministers. Burke is stated to have been employed by the Prince of Wales to write his reply to this letter. [Ibid. p. 351.] It could not have been entrusted to abler hands, and displays a depth of statesmanship, a range of talent, and just sense of the Prince’s position that only was possessed by our great countryman, with whom I am proud to claim consanguinity. [Edmund Burke’s mother was Miss Nagle, of Monanimy Castle, not far from Castletown Roche, County Cork, a branch of the Nagles of Anikissy, nearly related to me. Monanimy Castle, anciently a preceptory of the Knights of St. John of Jerusalem, is splendidly situated on the picturesque banks of the Munster Blackwater. It was long the residence of the Nagles, and, in the ruined church close by, is their tomb. The castle is a massive square building, and the portion yet habitable is now the seat of Richard Barry, Esq., who is married to my first cousin.] The Prince’s answer was as follows :-

‘The Prince of Wales learns from Mr. Pitt, that the proceedings in Parliament are now in a train which enables Mr. Pitt, according to the intimation of his former letter, to communicate to the Prince the outlines of the plan which his Majesty’s confidential servants conceive proper to be proposed in the present circumstances. Concerning the steps already taken by Mr. Pitt, the Prince is silent - nothing done by the two Houses of Parliament can be a proper subject of his animadversion, but when, previously to any discussion in Parliament, the outlines of a scheme of Government are sent for his consideration, in which it is proposed that he shall be personally and principally concerned, and by which the royal authority and the public welfare may be deeply affected, the Prince would be unjustifiable were he to withhold an explicit declaration of his sentiments, his silence might be construed into a previous approbation of a plan, the accomplishment of which every motive of duty to his father and sovereign, as well as of regard for the public interest, obliges him to consider as injurious to both.

‘In the state of deep distress in which the Prince and the whole royal family were involved by the heavy calamity which has fallen upon the King, and at a moment when Government, deprived of its chief energy and support, seemed peculiarly to need the cordial and united aid of all descriptions of good subjects, it was not expected by the Prince that a plan should be offered to his consideration, by which Government was to be rendered difficult, if not impracticable, in the hands of any person intended to represent the King’s authority, much less in the hands of his eldest son the heir apparent to his kingdoms, and the person most bound to the maintenance of his Majesty’s just prerogatives and authority, as well as most interested in the happiness, the prosperity, and the glory of his people… He observes only generally on the heads communicated by Mr. Pitt - and states, it is with deep regret the Prince makes the observation, that he sees in the contents of that paper a project for producing weakness, disorder, and insecurity in every branch of the administration of affairs; a project for dividing the royal family from each other; for separating the Court from the State, and thereby disjointing Government from its natural and accustomed support; a scheme disconnecting the authority to command service from the power of animating it by reward, and for allotting to the Prince all the invidious duties of Government, without the means of softening them to the people by anyone act of grace, favour, or benignity… With regard to the motive and object of the limitations and restrictions proposed, the Prince can have little to observe. No light or information whatever is offered to him by his Majesty’s ministers on this point; they have informed him what the powers are which they have to refuse to him, not why they are to be withheld. The Prince, however, holding as he does, that it is an undoubted and fundamental principle of the Constitution, that all the powers and prerogatives of the Crown are vested there as in trust for the benefit of the people, and that they are sacred only as they are necessary to the preservation of that poise and balance of the Constitution which experience has proved to be the true security of the liberty of the subject, must be allowed to observe, that the plea of public utility ought to be strong, manifest, and urgent, which calls for the extinction and suspension of anyone of those essential rights in the supreme power, or its representative, or which can justify the Prince in consenting that in his person an experiment shall be made to ascertain with how small a portion of the kingly power the executive Government of this country may be carried on.

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‘Upon that part of the plan, which regards the King’s real and personal property, the Prince feels himself compelled to remark, that it was not necessary for Mr. Pitt, nor proper to suggest to the Prince, the restraint he proposed against the Prince’s granting away the King’s real or personal property. The Prince does not conceive that during the King’s life he is by law entitled to make any such grant, and he is sure that he has never shown the smallest inclination to possess any such power; but it remains with Mr. Pitt to consider the eventual interest of the royal family, and to provide a proper and a natural security against the mismanagement of them in others.’ [Grattan’s Life, vol. iii. pp. 351, 352, 356.]

This reply shows how very repugnant the proposed plan was to the Prince, yet Mr. Pitt’s resolutions, when submitted to the British Parliament on January 16, 1789, were, after protracted debates, ultimately carried. A Bill was introduced on February 1, and, after great opposition, passed on the 12th of the month. [Grattan’s Life, vol. iii. p. 356.]

When the account of his Majesty’s illness was communicated to the Irish Parliament by the Viceroy in February, 1789, Mr. Fitz Herbert stated the intention of the Government proposing to make the Prince of Wales Regent by Bill. Mr. Ponsonby opposed this as unconstitutional, and Mr. Connolly moved and Mr. Ponsonby seconded the motion, ‘That it is the opinion of this Committee, that a humble address be presented to His Royal Highness the Prince of Wales, humbly to request His Royal Highness to take upon himself the government of this realm, during the continuation of his Majesty’s present indisposition, and no longer; and under the style and title of Prince Regent of Ireland, in the name of his Majesty, to exercise and administer according to the laws and constitution of this kingdom all regal powers, jurisdiction and prerogatives to the Crown and Government thereof belonging.’ [According to the observations of Lord Campbell in Lives of the Lord Chancellors of England, vol. v. p. 591, the course taken by the House of Parliament in England in ordering a commission for using the Great Seal, reciting, ‘By the King himself, with the advice of the Lords, &c., and Commons, &c.,’ was very anomalous, and he implies they should have passed an ordinance by their own authority, without the false assertion ‘that it was by a regular Act of legislation to which the King was a party.’ This shows the course taken in Ireland was right.]

Here, then, was a marked difference between the English and Irish Parliaments. The English Parliament considered the rights of the Crown and of the people required that the powers of the Regent should be limited - while the Irish Parliament, confiding in the virtue and integrity of the Prince of Wales, were for giving him unrestricted powers. During the debates on Mr. Connolly’s motion the Attorney-General argued ‘that the proposal was contrary to common and Statute law, and highly criminal.’ He maintained ‘that the Crowns of England and Ireland are inseparably and indissolubly united, and the Irish Parliament totally independent of the British Parliament.

‘The first position is your security - the second is your freedom, and when gentlemen talk any other language than this, they either tend to the separation of the Crowns or the subjugation of your Parliament - they invade either your security or your liberty. Further, the only security of your liberty is your connection with Great Britain; and gentlemen who risk breaking the connection must make up their minds to a union. God forbid I should ever see that day; but if ever the day on which a separation shall be attempted may come, I shall not hesitate to embrace a union rather than a separation.’

He then argued upon the condition in which Ireland would be placed in case the Prince did not accept the Regency in England, and contended that the mere presentation of an address conferred no royal authority, which could only be given by Act of Parliament. ‘If you wish to compliment the Prince of Wales, guard the imperial rights of the British Crown! He can have no triumph but that of governing a great and happy nation. If you would give him a triumph, guard, then, these rights, and guard the rights of the Crown!’

The Attorney-General also declared ‘the address proposed was not only highly improper, but treasonable, and that such was the opinion of the Lord Chancellor, the Chief Justice, and every lawyer whose approbation could give weight to his opinion.’

To this, Mr. Ponsonby replied: ‘Whatever respect I have for the right honourable gentleman’s talents, I never relied much on his assertions, and as I never myself use assertions for arguments, I hope he will excuse me from believing his.’

Mr. Curran also made another hostile display against the Attorney-General, for which he afterwards paid so dearly. Referring to the rights of the- Commons, Mr. Curran said: ‘This right is denied, and was called criminal by the right hon. Member (the Attorney-General), but I confide more in that learned Member as a prophet than a lawyer; for the hon. Member premised that he despaired of finding the House coincide in his opinion. The only point that remains is, how these full powers shall be delegated-whether by an address or by an Act. The latter is impossible; we are only two estates; we cannot legislate - we may deliberate - we may declare the incapacity of the King - the right of the Prince; but we can do it only by address. I have heard strange doctrines from the Attorney-General. Did that learned member think that two estates could legislate? He said that impressing the Great Seal of England made an Irish law - that an Act coming to our hands so authenticated was ipso facto law. Did the learned member think a third estate was supplied by a creature of the two Houses’ - by a forging of the constitution - by a phantom that had no interest to guard, no will to consult, no power to reserve? It was more like the language of an Attorney-particular that of an Attorney-General, it was that kind of silly fatuity that, on any other subject, I would leave to be answered by silence and contempt; but when blasphemy was uttered against the Constitution, it would not pass under its insignificance, because the essence should be reprehended, though the doctrine could not make a proselyte.’ [Grattan’s Life, vol. iii. P. 369.] Mr, Curran continued in much the same strain, and Mr. Grattan also came down heavily upon the Attorney-General, and a large majority carried the address.

Fitz Gibbon held aloof from the parasites and sycophants who bowed before the rising sun. He scorned to kiss the hem of the satrap of Carlton House. An unexpected obstacle to the transmission of the address was then presented. The Lord Lieutenant replied to the deputation, who waited on him with a request to forward it to the Prince of Wales: ‘Under the impressions which I feel of my official duty, and of the oaths which I have taken as Chief Governor of Ireland, I am obliged to decline transmitting this address to Great Britain; for I cannot consider myself warranted to lay before the Prince of Wales an address purporting to invest His Royal Highness with power to take upon him the government of the realm, before he shall be enabled by law to do so.’

This reply, which was no doubt advised by the Attorney-General, gave great offence to the Prince’s party in Ireland, and, as they constituted a majority of the Houses of Parliament, soon stormy resolutions, condemnatory of the Viceroy’s refusal, were passed in the Irish Parliament. [‘That His Excellency the Lord Lieutenant’s answer to both Houses of Parliament, requesting him to transmit their Address to His Royal Highness the Prince of Wales, is ill-advised, contains an unwarrantable and unconstitutional censure on the proceedings of both Houses of Parliament, and attempts to question the undoubted rights and privileges of the Lords Spiritual and Temporal, and of the Commons of Ireland.’ The Resolution was carried by 115 to 83.]

The conduct of the Irish nation, speaking through their Parliament, gave great satisfaction to the Prince of Wales. Mr. Pelham, [Afterwards Lord Chichester] writing to Grattan from London, February Letter 19,1789, referring ‘to all the tricks and intrigues of Mr. Pitt’s faction,’ goes on to say, ‘I trust that our friends in Ireland, who have done themselves so much honour by their conduct, will not be dispirited by these intrigues. I have not time to express to you how strongly the Prince is affected by the confidence and attachment of the Irish Parliament. I saw him for an instant in Carlton House, and he ordered me to write to you; but I have only time to say, in his own words, “Tell Grattan that I am a most determined Irishman.” [The sentiments of the Prince were not those of King George IV. He could scarcely be prevailed upon to assent to the Catholic Emancipation Act in 1829. A very interesting and important conversation in reference to the Union between Great Britain and Ireland, in which he took the chief part, is published in Curran’s Sketches of the Irish Bar, vol. i. p. 87. Should the reception of this work be sufficiently encouraging to justify my undertaking the Lives of the Chief Justices of Ireland, this conversation will be found in its place in the life of a distinguished Judge and gifted Irishman, Charles Kendal Bushe.] The King’s recovery on March 9th prevented further action being taken on the question of the Regency.

The vote of censure passed by the Irish Parliament on the Marquis of Buckingham made it imperative on him to leave Ireland. There was much antipathy felt by the followers of Pitt to the members of the Opposition, and as the Attorney-General was a leading member of the Pitt party in Ireland, he allowed no opportunity to escape without censuring the conduct of those who differed from the Ministerial policy upon the question of the Regency. When a rumour got abroad that all places and pensions held by the Members of Parliament in opposition, at the pleasure of the Crown, were to be taken from them, and every such man was to be the victim of his vote, a solemn document was prepared by Mr. Day, and corrected by Mr. Grattan, which was subscribed by no less than fifty-six noblemen and Members of the House of Commons of the highest ranks, pledging themselves ‘That if anyone of the subscribing persons shall, in consequence of his conduct upon that question, [The Regency] or upon the measures necessary to be taken in consequence thereof, be deprived of his office or pension, or shall be made, as has been threatened, “the victim of his vote,” we agree we will not accept of such office or pension for ourselves or any other person, and that we will consider such deprivation, dismissal, or the rendering any individual the victim of his vote, as a reprobation of our political conduct an attack upon public principle and the independence of Parliament; and that any administration taking or persevering in any such steps is not entitled to our confidence, and shall not receive our support.’ [Grattan’s Life, vol. iii. P. 383.]

When the Attorney-General heard of this document, which was called the Round Robin, though the names were not signed in a circle, as Sir Jonah Barrington has erroneously stated, he denounced it in the following severe terms: ‘I have heard reports which I cannot, nor will believe, but which I will mention, to give opportunity for clearing gentlemen from such vile imputations. I have heard that the spirit of Whiteboyism has found its way into this city, and that injurious and dishonest combinations have taken place. I do not now speak of the combinations of the journeymen pinmakers, who have suffered in Newgate for their offences; I speak of other combinations, which, had they been entered into against a tithe-proctor, the combining parties, by laws of their own making, would be condemned to be whipped at a cart’s tail.’

This violent outbreak of temper showed how annoyed the Irish executive were against the members of the Opposition who dissented from Pitt’s policy on the Regency question. But as these noblemen and gentlemen were proof against censure, the Government resolved to win them by milder courses. They were invited to remain in or return to office, that the past should be buried in oblivion, and the Attorney-General told Mr. Ponsonby ‘that the road to professional promotion would be opened to him if he would support the Government.’ Deaf to entreaty, as indifferent to censure, the Opposition would not coalesce. The consequences were such as had been anticipated. The Attorney-General was not the man to allow power to remain in hands he could neither coerce nor cajole, and fifteen men of the highest rank, including the Duke of Leinster, the Earl of Shannon, William and George Ponsonby, Charles Francis Sheridan, Denis Bowes Daly, and others were dismissed from places and pensions to the value of 20,000l. a-year. [Grattan’s Life, vol. iii. P. 390.] The course taken by the Attorney-general on the Regency question, though highly distasteful to the Irish National party, was most gratifying to the English Ministry. Mr. Pitt wrote a letter, [Dublin University Mag. vol. xxx. p. 682.] thanking him warmly for the course he pursued:-

‘Downing Street, February 23, 1789.

‘Dear Sir, - I cannot help troubling you with these few lines to express the strong sense which I am sure every true friend to Great Britain and Ireland must entertain of obligation to you in the present critical conjuncture, for the stand you have made in support of these principles, on which the safety of all for centuries so essentially depends. Allow me to add, how happy I feel personally at such a moment in being embarked in the same boat with you, and to assure you that in every circumstance I must entertain a grateful recollection of the support and credit which the cause of our Government has received from your exertions.

‘I am, with great regards, Dear Sir,

‘Your obedient and faithful servant,

‘W. Pitt.

‘Right Hon. J. Fitz Gibbon.’

A very angry debate took place in August 1789, upon Mr. Flood’s resolution, ‘That Parliament ought not to enter into any engagement to give up the sole and exclusive right to legislate for Ireland, as well externally as commercially and internally.’

The Attorney-General resisted this motion in a very violent harangue. He contended Mr. Flood’s resolution was nothing short of an insult to the Parliament of Great Britain. ‘If Ireland,’ he exclaimed, ‘seeks to quarrel with Great Britain, she is a besotted nation. Great Britain is not easily aroused, nor easily appeased. Ireland is easily roused, and easily put down!’ [Grattan’s Life by his son, vol. iii. P. 267.]

He was called to order by Mr. Flood, who declared’ he never heard more mischievous or more inflammatory language, nor more saucy folly.’

Mr. Foster proposed these words to be taken down, but did not persist in the motion.

The Attorney-General then fiercely attacked Curran, who had previously spoken in the debate:- ‘The politically insane gentleman (Mr. Curran) has asserted much, but he only emitted some effusions of the witticisms of his fancy. His declamation, indeed, was better calculated for the stage of Saddler’s Wells than the floor of a House of Commons. A mountebank, with but one half the honourable gentleman’s theatrical talent for rant, would undoubtedly make his fortune. However, I am somewhat surprised he should entertain such a particular asperity against me, as I never did him any favour. But, perhaps, the honourable gentleman imagines he may talk himself into consequence; if so, I should be sorry to obstruct his promotion; he is heartily welcome to attack me. One thing, however, I will assure him, that I hold him in so small a degree of estimation, either as a man or a lawyer, that I shall never hereafter deign to make him any answer.’

Curran was resolved to return some of the abuse he received from the Attorney-General:- ‘I have been told by the right honourable gentleman,’ he said, ‘that I have poured forth some effusion of fancy. That is a charge I shall never be able to retort upon him. He has said I am insane. For my part, were I the man who, when all debate had subsided - who, when the Bill had fallen to the ground, and was given up, had risen for the purpose of pronouncing an inflammatory speech against my country, I should be obliged to any friend who would excuse my conduct by attributing it to insanity. Were I a man possessed of so much arrogance as to set up the ideas of my own little head against the opinion of the nation, I would thank the friend who would say, “Heed him not, he is insane;” nay, if I were such a man, I would thank the friend who would send me to Bedlam. If I knew one man who was easily roused and as easily appeased, I would not give his character as that of the whole nation. The right honourable gentleman says he never came here with written speeches. I never suspected him of it; and I believe there is not a gentleman in this House, who, having heard what has fallen from him, will ever suspect him of writing speeches. But I will not pursue him further. I will not combat with a young fencer. When a pass is made at me by a young arm, I content myself with warding it off. I will not enter into a conflict in which victory can gain no honour. The right honourable gentleman should have known that on former occasions I was merciful in my resentment.’

These were the days in which the barbarous custom of duelling was very prevalent in Ireland. [Scott, Chief Justice and Earl of Clonmell, fought several duels, as did also Toler, Chief Justice and Earl of Norbury; Metge, a Baron of the Exchequer, fought three duels; Curran, Master of the Rolls, fought three; Fitz Gibbon, Lord Chancellor; Egan, Chairman of the County Dublin; Doyle, a Master in Chancery; Hutchinson, Provost of Trinity College; Sir Jonah Barrington, Judge of the Admiralty; Henry Grattan, and Peter Burrowers, fought duels.] Fitz Gibbon sent a hostile message to Curran, and a meeting took place. Mr. Ogle was second to the Attorney-General.

The duel between the Attorney-General and Mr. Curran was fought near Ball’s Bridge, Dublin, a favourite spot for hostile encounters before the Fifteen Acres grew into fashion for such affairs. The conditions were that both combatants might fire when they chose. Curran fired first; and, on returning his fire, Mr. Fitz Gibbon declared himself ‘satisfied.’ Curran afterwards said, ‘I never saw any man whose deliberation was more malignant than Fitz Gibbon’s. After I had fired, he took aim at me for at least half a minute; and, on its proving ineffectual, I could not help exclaiming to him, “Mr. Attorney, you certainly were deliberate enough!”’ [As some contradictions appear respecting the cause of this duel, I have taken pains to trace it, and find the weight of evidence leads to show it originated in the angry debate just referred to, and not, as stated by the late William Henry Curran in his ‘Life,’ or by Mr. Charles Phillips in his ‘Recollections,’ earlier in the year. Both these usually accurate authors represent this duel to have arisen from the charge made by Mr. Fitz Gibbon against Curran in the debate on February 24, that he was a ‘puny babbler;’ Henry Grattan, in the Life of his Father, mentions it as I have stated in the text, and this is strongly corroborated by a letter from the first Lord Plunket, dated August 27, 1789, in which he states the result apparently with some regret; ‘Curran and Fitz Gibbon fought, but unluckily they missed each other.’ - Life of Lord Plunket, vol. i. p. 46.]

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