Lords of the Ascendancy

The Irish House of Lords and its Members - 1600 - 1800

The appellate jurisdiction of the Irish House of Lords became a controversial issue at the close of the seventeenth century, and remained one for over twenty years. Several aspects of the question are important for this study: the near unanimity of the peers and bishops in defending the rights of the upper house, their insistence in forcing a show down with the English Lords, and as a consequence the temporary leadership of the Irish Lords in the formulation of a sense of Irish identity. Three different legal cases played a part in bringing the controversy to a head: a dispute between the London Society and William King, bishop of Derry, over property in Londonderry; litigation between an English peer, Baron Ward, and the earl and countess of Meath over lands in the palatine county of Tipperary; and the famous lawsuit Sherlock v. Annesley.

In the Derry dispute the society successfully sought an injunction against the bishop in the Irish chancery court. Bishop King, in turn, appealed to the Irish House of Lords, which ordered the injunction withdrawn. The society then petitioned the English House of Lords. That body ruled that the Irish Defining the Character of the Ascendancy chancery should disregard the Irish Lords, since it was coram non iudice. The Irish Lords refused to accept the ruling denying them jurisdiction. A committee of the Irish privy council, judges, and others appointed by the Irish House of Lords, after examining the records declared: 'we do find that the Lords Spiritual and Temporal in parliament assembled are in possession of a Supreme Judicature over the inferior courts and particularly over the Chancery here'. The Irish Lords proceeded to arrest the sheriffs of Derry for carrying out the chancery order. The English Lords then renewed their investigations, collecting precedents and other information. In May 1698 the English Lords reaffirmed its initial decision; finally in November 1699 the society gained possession of the contested property. Although accepting defeat in this in-stance, the Irish House of Lords proved far from ready to surrender its claim to be the ultimate court of Irish appeals. A sub-committee consisting of bishop King, the bishop of Clogher, and a Mr. Molyneux, had drawn up a list of early statutes that demonstrated the historical rights of the Irish parliament.78 The Molyneux in question was almost certainly William Molyneux, a member of the Irish Commons for Trinity College, who had published in 1698 his famous apologia for the legislative autonomy of the Irish parliament. The influence of Molyneux's line of reasoning soon manifested itself in the Lords handling of the Meath case.

The earl and countess of Meath petitioned the Irish House of Lords to set aside a ruling of the chancellor of the county palatine of Tipperary giving disputed lands to an English peer, Baron Ward, and his associates. The Irish Lords granted the Meaths' petition, ordering the palantine sheriff to restore their property forthwith. Lord Ward then appealed to the Irish Lords to rescind the order on the grounds that it violated his parliamentary privilege as a member of the English House of Lords. The Irish Lords rejected Ward's appeal, with four of the thirty-eight members present protesting. They held that the English parliament alone should define the privileges of its members in Ireland, because the legislative authority of the English parliament ex-tended to that country. In view of the fact that the Irish parliament had accepted English acts restricting its membership just three years before, the protestors' position made sense; but it was not popular.

By the time the Meath case was revived, following the Derry reversal and Molyneux's treatise, no peer proved willing to defend Irish legislative or judicial dependence on the English parliament. Meanwhile, Lord Ward had successfully regained possession of the Tipperary property. In 1703, the Meaths once more petitioned the Irish House of Lords for redress. The Lords, with no dissenting vote, not only ordered the return of the earl's property, they also passed sweeping resolutions explicitly declaring their right to serve as the sole supreme judicial body for the kingdom of Ireland.

Confrontation between the Irish Lords and the government seemed inevitable. Somehow it was avoided, partly because responsible leaders in both countries dreaded the results. The four protesting peers, m 1695 had ex-pressed the view that any difference with the English parliament, 'may be of very ill consequence to this nation'. Some in England were apprehensive too. In 1698 the elder statesman, the duke of Leeds (the former earl of Danby), protested against the coram non judice decision of the English Lords, arguing that the appellate jurisdiction of the Irish Lords was historically based and necessary for its prestige. Anticipating Edmund Burke's broad view of the empire, he concluded that, 'the better we preserve the constitution of Ireland and those plantations dependent on England, the better we shall [defend] our own'.

The Irish administration in 1703 seemed to agree with the moderates. The new lord lieutenant, the second duke of Ormond, hoped to govern Ireland with popular approval, uniting the old and new aristocracy. He suggested to London that a government pension for the Meaths (not to be confirmed until after the close of the parliamentary session) might persuade them to withdraw their petition. The administration succeeded in having the Lords table the Meath petition in November, 1703, and the earl of Meath agreed to a settlement. But in February 1704 Ormond wrote it was not in his power 'to prevail with the Lords to lett my Lord Meath withdraw his petition . . . The Lords say that the honour and jurisdiction of their house is now to be asserted. Later an accommodation between the Meaths and Ward appears to have been reached, while, following Ormond's advice, the government overlooked the Lords' provocative resolutions.

Although moderate councils prevented the Meath case from forcing a showdown, the constitutional issues at stake were recognized by both sides. At the height of the Meath affair the Irish Lords advocated a union of the two kingdoms as one effective method of avoiding controversy, provided that Ireland received effective representation in Westminster. Molyneux, developing the theme of no legislation without representation, had recognized union as an alternative. In 1709 the Irish House of Lords once again recommended a union, in response to the Whig ministry's plea for more effective unity between Irish Protestants (i.e., relaxation of the laws against Dissenters). Both of these resolutions calling for union imply that the Ascendancy was determined to demand recognition of its dominant position, either by being given fuller control in Ireland, or by a union, which would guarantee its privileges. On their part, government officials feared that any extension of Irish rights might weaken English control. During the Meath case, one English peer observed that, if the judicial supremacy of the Irish House of Lords went unchallenged, 'they might explain Acts then just as they would and so pervert them.'88 To a degree this happened in 1709; the Irish Lords reversed the ruling of the Exchequer court against a merchant for avoiding tobacco duties.

Chief Secretary Joseph Addison estimated that the decision would cost the government 7000 to 8000. Sooner or later the judicial authority of the Irish House of Lords would have to be defined. The cause celebre, which precipitated the final conflict between the Irish Lords and the British parliament, Sherlock v. Annesley, began in 1716.

In both the Meath and the Derry cases the Irish House of Lords had come to the defense of its own members against English litigants. In the Annesley case it intervened to protect the rights of a Jacobite (possibly Catholic) plaintiff against the claims of a member of a prominent 'New Protestant' family. Because of his service under James II, Christopher Sherlock had been outlawed and his property forfeited. Since Christopher's inheritance provided portions for his sisters and brothers, the widowed mother of the children had requested that Maurice Annesley lease the estate from the trustees of the forfeited estates and act as guardian of the minor children. When the oldest Sherlock daughter, Hester, sued Annesley in the Exchequer Court to recover her portion, Annesley successfully defended himself on the grounds that he had exhausted the estate caring for the children. In 1716 Hester appealed to the Irish House of Lords, which reversed the decision of the Exchequer. Annesley took the case to the English Lords, on the grounds that the Irish peers had no appellate jurisdiction over the Irish Exchequer. Once again the government sought to avoid a rupture. As Addison put it, 'the sum of money which gives rise to the dispute is too inconsiderable to be put in the balance with the good understanding that ought to be kept between the two kingdoms. The administration arranged to have a placeman in the Irish Commons buy out Hester's claim. But, as in the Meath case, the Irish House of Lords insisted on making an issue of its rights. This time it took steps that compelled London to retaliate.

In July 1719 the Irish upper house summoned, questioned, and then imprisoned the Exchequer judges for carrying out orders from England; they reiterated their resolutions of 1704; and they drafted an address to the crown justifying their actions. Furthermore, they broke precedent and authorized the printing of the address before receiving a reply. Only ten out of thirty-eight members present voted against these measures, and only seven-the chancellor, a brother of one of the judges and five recently appointed English bishops entered a protest. The Irish Lords defended their position on the grounds that England and Ireland constituted a dual monarchy, bound together by allegiance to the same king. But, as Isolde Victory remarks, they discovered that 'the King could no longer act without Westminster'. The Whig ministry could not overlook the challenge to British authority. The English House of Lords promptly recommended that the imprisoned Irish judges be rewarded for their loyalty, it then proceeded to draft a bill explicitly denying the appellate jurisdiction of the Irish Lords, and further declaring the competence of the British parliament to legislate for Ireland. Despite the opposition of several Anglo-Irish members in the English Commons this Declaratory Act had passed into law by the end of March 1720. The Irish Lords reacted with impotent anger. They could resist English domination by argument, manoeuvre and evasion; they could not afford to do so by force. The Ascendancy depended upon British power.

The attempt of the Irish House of Lords to assert its judicial supremacy thus culminated not only in the loss of Irish judicial independence, but also in Lords of the Ascendancy the denial of Irish legislative autonomy as well.