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The Constitutional Position

ANGLO–IRISH RELATIONS had their origins in England and Ireland's common medieval past. It was only the problems of ruling the far–flung domains of the Angevin kings that led to any systemisation of government. Henry II personally ruled as King of England, Duke of Normandy, Count of Anjou, etc., all of which territories were ruled separately and adhered to different laws and customs. He created his youngest son, John (who unexpectedly became his ultimate heir), Lord of Ireland, and from John's reign until that of Henry VIII the Kings of England were Lords of Ireland. Then in 1541 parliament met in Dublin and, in 33 Henry VIII, c. 1, presented to parliament in both Irish and English, Henry declared himself King of Ireland, which he defined as 'depending and belonging to the imperial crown of England'. Thus from the accession of James I and VI in 1603 to the Scottish Act of Union in 1707 the sovereign of England had two separate and theoretically co–equal crowns and one dependent crown. The status of Ireland was confirmed by the Revolution settlement in 1692.

Apart from the Act of Recognition, the Irish parliament did not pass any constitutional legislation at the time of the Revolution settlement. Constitutional aspects of the settlement were confined to such legislation of the English parliament as specifically included Ireland. Consequently the Bill of Rights was reduced solely to the sections that defined the title to the Crown, although an unsuccessful attempt was made to introduce a Bill of Rights for Ireland in 1695. The remaining legislation associated with the 1689–1714 settlement, passed by the English (after 1707 the British) parliament, applied to Ireland only in so far as it related to the succession to the throne. Judicial tenure remained at the royal pleasure and the duration of parliament was limited only by the wishes or life of the sovereign in whose name it had been called. This was a period in which both England and Ireland were evolving the basis of a system of co–operative government. Gradually the basis of the agreement emerged: protection for the new governing class in Ireland and finance for the British government, with the Irish military establishment as a link between the two. Standing armies were unpopular in England, but the European interests of William III and the Hanoverians made them anxious to keep the numbers of men under arms higher than the British parliament would have wished.

The financial arrangement was frequently subject to friction over the question of whether the Irish House of Commons had the 'sole right' to initiate all money bills. They were usually quite willing to pay in return for security, and during these years financial arrangements evolved whereby the method of securing any shortfall in the revenue would be left to the Irish parliament, which eventually decided that the shortfall would be made up through additional duties on specified goods and not as earlier by a direct poll tax, which had proved unworkable. The placing of Ireland within the imperial mercantalist framework was indicated by 7 & 8 Will. III, c. 39 (Eng.), 'for encouraging the linen manufacture of Ireland' by admitting Irish linen free of duty into England, and 10 Will. III, c. 5, which imposed duties on the export of Irish wool. A further English statute, 10 & 11 Will. III, forbade the export of Irish woollens other than to England. Another area of recurrent conflict was the question of whether final jurisdiction lay with the British or Irish House of Lords; in 1720 an attempt was made to resolve this by 6 Geo. I, c. 1 (Gt B.), declaring that it lay with the British House of Lords. This produced some curious results both in its operation, see 19 & 20 Geo. III, c. 30 (Tenantry Bill), and following its renunciation (28 Geo. III, c. 28 (Gt B.).

However, the major change resulting from the Revolution settlement 1688/9–1714 was in the executive position of the king. This was partly due to the external commitments of William III and the poor health of Queen Anne, combined with the long drawn–out War of Spanish Succession. Moreover, their Hanoverian successors were elderly and not overly ambitious men, preferring, if certain demands were met, a quiet life with frequent visits to their home in Hanover. Therefore, by the eighteenth century the parliament of Great Britain had entered into an executive partnership with the Crown whereby the king selected his ministers from parliament and a policy agreed between them was submitted for parliamentary approval. In Ireland the king's executive authority had previously been exercised through his personal representative, the Lord Deputy or Lord Lieutenant. After the Revolution this representative was appointed with the consent of both king and cabinet and, from time to time, the Lord Lieutenant was a member of the cabinet. Members of the cabinet were automatically members of the British Privy Council, which, until 1782, had the deciding voice in the formation of Irish legislation. By the eighteenth century the executive power of the king in Ireland had evolved into that of the king and the British parliament. This had the curious consequence of allowing the person of the sovereign to be separated from the policies being carried out in his or her name, and gave rise to the erroneous view that the crown of Ireland belonged exclusively to the king in the Irish, not the British parliament.

Moreover, British cabinets in the eighteenth century operated on two theories: government under a prime minister actually or tacitly acknowledged, or government by departments separately responsible to the monarch. The latter indicated the greater influence of the House of Lords on the government than exists in the United Kingdom today. Many ministers were peers whose social position naturally inclined them to the idea of individual and co–equal responsibility, for by long tradition they were the king's hereditary counsellors and the mainstay of his dynasty. It was from this group that the king chose his personal representative, the Lord Lieutenant of Ireland. Every British minister who aspired to the leadership of his colleagues had to operate within the consensus of this powerful landed oligarchy, whose political power was not only traditional but also electoral. Political parties in the modern sense were unknown, and no eighteenth–century ministry changed as the result of a general election.

In a real sense in Great Britain the eighteenth century was a transitional period in the methods by which political power was exercised. Until the final decade of the seventeenth century parliament did not meet regularly in either England or Ireland. Colonies were small and distant and for the most part regarded with a benign neglect: a situation that had been exacerbated by the Civil War. Cromwell had subsequently attempted to establish a framework for trade, which, in the eyes of the mother country, was the principal purpose of colonies. Although Cromwell's work had officially been obliterated by the Restoration, many of his ideas reappeared during the reign of Charles II. As a mature and above all a neighbouring possession that not only had shared England's medieval heritage but was also part of Europe, Ireland was in a different position from the embryonic colonies overseas, and her administration raised particular problems, many of which dated from the end of the medieval period.

Ireland had been implicated in the two rebellions that marked Henry VII's accession to the throne. In 1487 the first of the Yorkist Pretenders, Lambert Simnel, supported by many of the Irish and old English nobility, had actually been crowned in Christ Church Cathedral as Edward VI, and an Irish army invaded England on his behalf. They were defeated at Stoke and Simnel's claims made so ludicrous that he was sent to work in the king's kitchens. The next claimant, Perkin Warbeck, was more serious and more difficult to disprove, as he claimed to be one of the, by this time dead, Princes in the Tower. Henry VII sent over Sir Edward Poynings to remove the threat that Ireland had twice posed to his dynasty. Poynings was a capable soldier and an efficient administator. His reputation went before him and he speedily won the respect of the Irish chieftains who had been supporting the Yorkist rebellions. In December 1494 he called parliament at Drogheda; one of the most famous Irish statutes, Poynings' Law, was passed by this parliament.

Poynings' Law stated that no Irish parliament was to be held without the consent of the English king previously certified by the king's Lieutenant and Council, who were to certify 'all such acts as them seemeth should pass in the same Parliament'. After the king had approved this agenda a licence to hold the parliament was issued by the king in Council under the great seal of England, and only then could parliament be called. In practice this proved inconvenient, and an explanatory act, 3 & 4 Philip and Mary, c. 4, allowed additional acts to be transmitted to England by the same process after parliament had met. This allowed the seventeenth–century development of the practice of submitting heads of bills. A bill started with a preamble giving the reasons for its enactment and the phrase 'Be it enacted that'. It then passed through both houses of parliament, and if the monarch consented it became an act and, as such, legally binding. The heads of a bill commenced 'We pray that it may be enacted that'. These heads could arise in either house of the Irish parliament, and from there they went to the Irish Privy Council. If the Council approved it struck off the words 'We pray that it may be', attached the great seal of Ireland and forwarded it to the king and Council in London. If they approved it, it was returned with the great seal of England (after 1707 of Great Britain) attached. It then went to its House of origin; if approved there, that House sent it to the other House, and if they approved it it went to the Lord Lieutenant who, at the end of the session, gave the royal assent. But, once returned from England, the Irish parliament could only accept or reject the bill in its entirety; it could not be altered in any way. Poynings' Law with its sixteenth–century amendment remained in force until it was finally amended in 1782, so that Irish legislation went to England unaltered and unfiltered.

The powers given to the Irish Privy Council under Poynings' Law were considered by Lord Chancellor Camden to ensure that: 'The Council in that country is an assembly of equal importance of either of the branches of the legislature.' Membership was a much sought–after honour, and many of its members were prominent Irish politicians. Its position as a bridge between the Irish parliament and the British executive ensured that its advice was not invariably in line with what the Lord Lieutenant, or the British ministers, expected. Occasionally they also disagreed with the Irish parliament, as happened in 1778 when the heads of the bill for a new Militia Act came before the Council. The Lord Lieutenant had previously reported that 'This is a very popular and favourite Plan', only to discover that 'When it came into Council by much the greater Number of the Lords were of Opinion that it could not answer the good Purposes for which it had been formed, although the general sense of the House of Commons and of the Lords of the Council [was] that either a Militia or independent companies would in case of an invasion or apprehension of it be absolutely necessary for the internal security of the country.' Nevertheless, while the power of the Irish Privy Council in legislation was very much a reality, there was a certain reluctance to reject a very popular measure such as the 1768 Octennial Bill, which, 'confident that the English administration would stifle the measure', the Irish Privy Council 'certified ... over to England'. To their acute discomfort it was returned,12  bringing with it a new and expensive era of electioneering.

Parliament worked through committees at various levels.13 There were the four Grand Committees with formally assigned meetings. While parliament was in session the Committee on Religion was to meet on Tuesdays, Grievances on Thursdays, Trade on Fridays and Justice on Saturdays, but there is little or no evidence of their actually meeting. In Great Britain, although formally appointed until 1832, such committees were already considered 'obsolete' by 1762. It was probably the same in Ireland, although from time to time in the 1780s and 1790s the opposition called for them to meet. The principal regular committees were Privileges and Elections and the finance committees – Supply, and Ways and Means. These became committees of the whole House (i.e. the House of Commons turned itself into a committee to review the recommendations of the original committee) and their recommendations were usually prepared by MPs with expertise in the field but were open to discussion by the House, which accepted or rejected them. General business was prepared for the House by select committees. The lists of names nominated were of potential rather than actual committee members. In fact, except for select committees on controverted elections conducted under the O'Brien–Lucas Act (11 Geo. III, c. 2), where the procedure was clearly defined, appointment to most committees appears to have been rather casual, based on a core suggested by the administration, usually of experienced parliamentarians; all other interested parties could attend and all who attended were full committee members with votes. However, unless the subject was of general interest most select committees were small and their quorum varied. A select committee elected its own chairman and could call for evidence, which it assessed and reported to the House. The House then discussed the report and in some cases ordered it to be printed. It could reject, amend or accept the conclusion of the committee or it could send it back for further study and a later presentation. The quorum of the House was 40, and should it be pointed out that there were fewer than 40 MPs in the House business was suspended.

The passage of a bill was long and tortuous and it could be rejected at any stage, although it was more likely to be rejected at an early stage, either refused leave in the first instance or rejected at the second reading. After a bill was introduced it was given a first and second reading. A bill received three readings – the reasons for this are lost in antiquity. When the House was in committee the Speaker vacated the Chair, the mace was placed under the table and the role of chairman was usually taken by the member who had introduced the bill, sitting at the table – the Chair remained vacant. The Speaker could then join in debate.

If it survived its second reading, the Speaker resumed the Chair and the bill was then reported to the House, ordered to be engrossed and given a third reading. It then finally passed or, very unusually, it might be rejected even at this stage. Before 1782 this process was further complicated in the case of some statutes, for statutes could and did originate in the Irish Privy Council by the additional layer of the heads of bills process.

A bill usually originated in a petition,14  either from outside or a motion by an MP. If the House approved a petition it would either have or be assigned a sponsor who would introduce it as a motion, and normally it would be given an unopposed first reading. Then two MPs would be specified to look after the bill – one was often the sponsor – and an open–ended select committee with a quorum, but allowing all who came to have voices, would be appointed to report to a committee of the whole House on the detail of the bill. The House could then accept, reject or amend the report; if it was amended the committee either accepted the amendments or took it back for further study and report. The important stage of the bill was the second reading, when the Speaker could vacate the Chair and the mace was placed under the table. The Chair was then taken by the MP who introduced the report. On this occasion the Speaker could address the House as an ordinary MP: Foster (0805 ) did this to great effect during the Union debate. The third reading was usually, but not invariably, formal. Once the House approved it, the chairman of the committee that had introduced it was requested to take it to the Lord Lieutenant, who was requested to transmit it to Great Britain: he was not requested to send it to the Irish Privy Council, to which it then went. Under the terms of Poynings' Law the Privy Council could either 'smother' it or transmit it as a potential bill under the great seal of Ireland.

Unfortunately, not enough is known about the select committees, for instance how many apart from the bill's sponsor, his supporter and perhaps a few loyal friends actually attended. Probably it varied depending on the interest in the bill. The exception is the committees on controverted elections set up under the O'Brien–Lucas Act, 11 Geo. III, c. 2, which details precisely how these committees were set up and conducted; a few reports from them are extant. The most colourful example of a sponsored petition was O'Hara's sponsorship of Richard Burke's 1793 petition on behalf of the Catholics, which he did as a 'personal favour' to 'a very particular friend' (Edmund Burke). Richard Burke attempted to intervene, going on to the floor of the House during O'Hara's speech, and thereby incurred the wrath of the House, already sore at the Catholic concessions forced from it. O'Hara had to withdraw his motion and any support that his petition might have had was lost.

Under Poynings' Law bills transmitted to the British Privy Council under the great seal of Ireland were considered by a committee of Council specially appointed for each session of the Irish parliament. In March 1776 this committee met in the Council chamber at Whitehall and recommended the Secretary of State for the Southern Department – the minister responsible for Ireland – to convey to the Lord Lieutenant the results of its deliberations. Being appointed ad hoc, the committee varied in size and membership. In 1760 when it met over the important issue of whether a Money Bill should be transmitted, among those present were the non–resident Lord Lieutenant, the Duke of Bedford, and the committee's recommendations were signed by the Archbishops of Canterbury and York, 25 other peers and seven commoners, making a total of 34. On the other hand, the committee that met in May 1778 numbered only six: the Lord President and Lords Hillsborough, Nugent, Townshend, North and Charles Townshend. A quorum was three.

A report on the bills sent over for the consideration of the British Privy Council was made by the British Attorney General and Solicitor General, who each received a fee of £200 per parliamentary session. The Irish Prime Serjeant, Attorney General and Solicitor General and the Senior Counsel to the Revenue Board received 'seven hundred pounds a year each for preparing and settling the money bills in each session of Parliament', and the Attorney General and Solicitor General each got a fee of ten guineas on private bills. Bills that were approved by the British Council were sealed by the Chancellor and transmitted to the viceroy through the office of the Lord Lieutenant's Secretary in England.

In 1692 England had been a middle–ranking European state to which Ireland had been attached by a long and complex process, and was governed by methods rooted in the late middle ages. By 1763 Great Britain was the leading European imperial power and on the edge of becoming the world's leading industrial power. Her colonies had developed and were demanding an ever–increasing say in their government. But while many agreed with Grattan that 'America was the only hope of Ireland the only refuge of the liberties of mankind', they also agreed that 'next to our liberties we value our connection with Great Britain.' However, by the late 1770s there was a widespread demand for a redefinition of the relationship between Great Britain and Ireland.

The American war had left Britain in a vulnerable position, shaken by the loss of the American colonies and by the early 1780s uncertain what the relationship of the mother country to its dependencies should be. At the same time, it was genuinely anxious to pacify Ireland. Irish agitation reached its height in 1781–2, and the result became known as the constitution of 1782. Amid great excitement, Poynings' Law was amended by 21 & 22 Geo. III, c. 47, an act sponsored by Barry Yelverton (2268 ), afterwards Lord Avonmore. It declared that 'the Lord Lieutenant or other chief governor or governors and council of this kingdom ... do and shall certify such bills and none other, as both Houses of Parliament shall judge expedient to be enacted in this kingdom ... without addition or dimunition, or alteration.' This was the cornerstone of a group of acts that included 21 & 22 Geo. III, c. 50, which declared that judges should hold office, as in England, during good behaviour (quam diu se bene gesserint) and not at the behest of the sovereign (durante bene placito regis). Two British statutes – 22 Geo. III and 23 Geo. III, c. 28, repealed and then, in face of Irish suspicion, formally renounced English jurisdiction over the Irish law courts.

Poynings' Law was amended but not obliterated by the 1782 Act. Irish bills still required the Royal Assent and essentially this was given by the king in the British Privy Council. Thus the power of the British Privy Council to reject Irish bills continued even after the final amendment of Poynings' Law in 1782. For instance, in 1788 Lord Lieutenant Buckingham wrote to his brother, W. W. Grenville, that 'this messenger carries over the last transmiss of bills, and I am obliged to desire that one of them, For preventing sheep stealing, may not be returned. It is always good to keep up the practice of rejecting in the English Privy Council.' Similarly the British Attorney General and Solicitor General continued to give a report on Irish bills, although their fees were occasionally attacked in the Irish House of Commons.

Frequently there was a considerable delay in the return of bills from Great Britain, and as the Irish parliamentary session could not be concluded until they were returned, that assembly was occasionally left in a state of dangerous idleness. 'It is with the utmost Difficulty that I can keep them in Temper,' stated Lord Harcourt, 'and I cannot be answerable, whether for want of other Employment, some unforeseen Matters may not be started, that in their Consequences may prove very disagreeable.' Sometimes when the bills eventually arrived they carried a number of alterations, like the 1774 Stamp Act. Godfrey Lill (1236 ), the Irish Solicitor General, complained to Sir George Macartney (1302 ) that:

The Stamp Act and that for raising £265,000 by life annuities, were transmitted to us with about 80 alterations, most of them words and syllables, some few more material ... the multiplicity of alterations which appeared upon ye Report from ye comm(itt)ee of Comparison alarmed people who thought some some deep scheme on the other side of the water was laid. It was impossible to stem the torrent, Govt. was carried down with it, both bills were rejected, two similar ones introduced and are pass'd in which the alterations that were thought right ones are adopted & ye others Expurged.

On their return from England bills were carefully compared with those sent to the Irish Privy Council as 'heads of bills'. If the alterations subsequently made to them were considered excessive, undesirable or derogatory to the pride of the Irish parliament, the bill was rejected. Frequently, however, bills identical to those thrown out were then introduced as fresh 'heads of bills', and on passing through the usual channels eventually became law.

Despite the convoluted process of Poynings' Law, the Irish parliament modelled itself on the British parliament, using the same rules for debate and having the same officials – for example, the Serjeant–at–Arms, the executive officer of the House. The Journals were often simply records of date, of decision and, if there was a vote, of its outcome: it is often difficult to work out precisely how those decisions were arrived at, or to what extent parliament followed its own rules – for example, speakers could speak more than once in a select committee considering the heads of a bill, but in a committee of the whole House they were expected to speak only once, unless they could raise a point of order. Sir Henry Cavendish Jr (0381) paints a picture of less than orderly discussion and interjection, which took all the abilities of men of the calibre of Pery (1671) and Foster (0805) to control.

The constitutional bills passed by the Irish parliament tended to fall into three categories. Firstly, normal'> bills that defined Anglo–Irish relations: these ranged from Poynings' Law (10 Henry VII, c. 4) and its various amendments to the Act of Union (40 Geo. III, c. 28) and its supplementary legislation. Secondly, there are statutes relating to the Crown and the succession from 1542 (33 Henry VIII, c. 1) and the English acts which applied to Ireland at the time of the Revolution Settlement. In the middle of the century, following the death of Frederick, Prince of Wales in 1752, statutory arrangements were made for any potential minority, but not for the extraordinary situation that emerged in 1789 when the king, still a major force in the executive, was incapacitated. The third category comprised acts internal to the Irish parliament affecting privilege, elections, the issuing of writs, etc.

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