[From Dublin University Magazine, Vo. VI, No. XXXV, November 1835]
We have not much space to devote to comment upon the recent proceedings of the Privy Council with respect to the corporation of Cork. It is well, however, that these extraordinary proceedings should be put upon record, as they furnish a remarkable instance of the justice, the constitutional principles- ay, and the capabilities, of those to whom is entrusted the government of Ireland.
Our readers are aware that the Lord Lieutenant and Privy Council, in the exercise of a power which had long been dormant, withheld their approbation from the gentlemen elected by the corporation of Cork to fill the office of mayor and sheriffs of that city. The whole proceedings of the Council in this matter present, we do not hesitate to say, the most extraordinary compound of arbitrary caprice and of legal blunders. They appear equally ignorant of the nature of the power which was entrusted to them, and regardless of the principles of equity that should guide its application. We shall first briefly detail what they did do, and then we shall refer to the authority under which they professed to act.
On the fifth of July the freemen of Cork proceeded to elect, according to their ancient charter, a mayor and sheriffs. To the former office they elected Mr. Deane, and to be sheriffs they nominated Messrs. Ballard and Rogers. Agreeably to a provision of the "New Rules" made by the Lord Lieutenant in council in the year 1672, the names of the gentlemen so elected were immediately forwarded to the Lord Lieutenant for approval. A memorial was also forwarded by some of the inhabitants of Cork, praying that the Council would withhold their approbation, alleging, we believe, as the ground of such prayer, that the mayor and one of the sheriffs belonged to the Orange Association. In the end of September, and not till then, the Privy Council proceeded to take the matter into consideration. Mr. Deane, who was in waiting, was called in, and was asked if he would avow himself an Orangeman. He answered, that he would.
The agent for the memorialists was called in, and asked if he was ready with any evidence to substantiate the allegations of the memorial. He answered that he was not, upon which the Lord Lieutenant and Council came to one of the most extraordinary decisions that ever disgraced a judicial body. They determined to withhold their approbation, because there was no evidence to warrant them in doing so. Our readers should distinctly understand that the withholding of their approbation is equivalent to rejection, and forces the corporation to a new election. Thus, then, the Council refused to confirm the election of the freemen of Cork because there was no evidence to show that it had been an improper one: and they desired their clerk to frame a document to this effect, while at the same time they declared that they gave no opinion on the matter contained in the memorial.
Fully to comprehend the utter absurdity of this unjust and tyrannical resolution, it will be necessary to refer to the authority under which they acted.
In the year 1662 an act of the Irish parliament was passed "for the better execution of his Majesty's gracious declaration for the settlement of his kingdom of Ireland, and satisfaction of the several interests of adventurers, soldiers, and others his subjects there." By one of the clauses of this act a power was given to the Lord Lieutenant and Privy Council to make rules for the regulation of corporations in Ireland, and such rules were declared to possess the authority of an act of parliament. In accordance with this provision the Lord Lieutenant and Council formed what have since been called "the New Rules." These rules differ for different corporations. On the 23d of September, 1672, they formed the rules which regulate the corporations of "Cork, Waterford, Kinsale, Youghal, Cashel, Clonmel, Athlone, Londonderry, Carrickfergus, Coleraine, Strabane, Charlemont, Trim, Dundalk, Kilkenny, Wexford, and Ross." The first of these rules is as follows:-
"That upon all elections to be hereafter made after the last day of December next, of any person or persons to serve in any of the offices of Chief Magistrate, or Magistrates, Recorder, Sheriffs, or Town Clerk of any of the said several cities, walled towns, or corporations, the names of the persons so elected to serve in the said several offices shall be by the said corporations forthwith after such election presented to the Lord Lieutenant, or other Chief Governor or Governors, and the Privy Council of this kingdom, to be approved of by them; and the said persons so elected for any of the said offices shall be incapable of serving in the said several offices unless they shall be respectively approved of by the Lord Lieutenant and Privy Council, by order under their hands; and in case the persons, or any of them, whose names shall be so presented shall not be approved of within ten days after their names shall be so presented - then and in such case the said corporation shall from time to time proceed to a new election of fit persons for the said respective offices for which the persons so presented shall not be so approved of, and shall in like manner present their names until they have chosen such persons for the said respective offices as shall be approved of as aforesaid."
And then follows a regulation most important to the present case, that all elections to these offices should take place at a period of three months previous to the usual time of their entering on the duties:-
"To the end that there may be sufficient time between such their election and their entering upon the execution of their said respective offices for the obtaining of the approbation of the Lord Lieutenant and Council, and for the making of new elections in the places of such who shall not be approved of."
This is the authority which makes it necessary for corporate officers to obtain the approval of the Lord Lieutenant and Council. It will be observed that the Council are never empowered or required directly to refuse the officers: the withholding of their approbation for ten days is sufficient to compel the corporation to a new election. When, therefore, the Privy Council withheld their approbation from the Mayor and Sheriffs of Cork, they did all that they could do - they complied with the prayer of the memorialists, and this they alleged in their document that they did - because they had no evidence to authorize them to do so!! and at the same time they asserted that they gave no opinion on the matters contained in the memorial !!!
Upon what, then, in the name of common sense, did they pronounce an opinion? They have put, as far as they could, a stigma upon the characters of honourable and respectable men; in their judicial capacity they pronounced them unfit to hold the office of magistrates in their native city; and they issue at the same time a document declaring that they have no reason whatever for this wanton attack upon private right and public privilege; they declare that they have no motive to assign beyond their own caprice, and they beg that it may be distinctly understood that their only pretext is
Sic volo sic jubeo stat pro ratione voluntas.
The only thing that could justify the Council in withholding their approbation is proof that the persons elected were "unfit." What constitutes "unfitness" is also a matter that may admit of discussion. But in the present case this is a question into which we need not enter. No proof was offered - allegations were made; but even the slender support of these allegations their own document dashes aside - they declare that they give no opinion upon the matters alleged against the officers elect - they separate, by a most extraordinary process, their judicial decision from their judicial opinion - they take from the former every thing that might conceal its injustice, every pretext upon which it might rest, and they leave it an abstract, naked, unsupported act of arbitrary power.
The Privy Council is a judicial body - this is a maxim which no lawyer will dispute - it is supposed to be governed by the same rules and principles which regulate other courts of justice - and it is as emanating from a judicial body that we must regard the document which announces the withholding of their approbation. It is not the firman of an eastern divan, with whom their will is law, and with whom suspicion may supply the place of evidence - it is a judicial document issued by a British court of justice bound by certain rules, and supposed to pronounce its decisions according to certain principles. Regarding the transactions only by the light which this document affords us, we say that this decision is as arbitrary as any that ever was pronounced by "the Lords meeting in the starred chamber." They have declared that they had no evidence whatever to authorise their proceeding - they have then done gross injustice to the gentleman elected in pronouncing him unfit - they have wantonly insulted the freemen of Cork in negativing their choice. It is certainly the first time that we have heard the maxim laid down by any court, that because a party are not prepared with any evidence, they are entitled to a decision in their favour. Such, however, is the only reason that the Privy Council have assigned for their decision in favour of Messrs. Feagan and Hayes against the citizens of Cork.
To Mr. Deane, the injustice has been great. He was chosen by his fellow-citizens to the office which is naturally and justly the highest object of civic ambition - from the possession of that office the tyranny of the Privy Council has thrust him down. The rules of the corporation precluded his reelection, and he is now a private citizen - if the mayoralty of Cork be an honor worthy of being sought, surely the decision, which, without cause or reason, deprives an individual of that honor, is a wrong.
Surely the natural and equitable course for the Privy Council to have pursued, would be upon finding the memorialists unprepared to sustain their allegations, not to come to the preposterous resolution of therefore deciding in their favour, but to declare that as no reason was offered to induce them to interrupt the usual course of things, they would not be justified in withholding their approbation. In this case, as in all others, honesty would have been the best policy - their decision would have been both in accordance with equity and law - and they would not have exposed themselves to the contempt of having issued a document such as that upon which we comment - a document which we protest we cannot conceive how any one who has read the "new rules" could frame - a document to which we do not believe the dullest and most incompetent barrister, even among the recent elevés of the Whigs, would sign his name - a document of which Mr. Justice Perrin might be ashamed, and of which Mr. Deputy Remembrancer Hudson could expose the absurdity.
This we say merely upon the evidence contained in this precious document itself. But let us return to the rule which we have quoted, and let us see how far the spirit of that rule has been conformed to. It is by that rule expressly provided, that an interval of three months shall elapse between the election of corporate officers, and their entering on their offices - for the express purpose of giving time for the obtaining of the approval of the council, and of a new election in case that approval shall be withheld. Mr. Deane is elected on the fifth of July, the return is forwarded "forthwith," Unless the approval was to be as usage has now established it, a mere matter of form, the Council should immediately have adjudicated upon it, and not defeated the provisions of the rule by deferring the consideration until the last possible moment. If the routine of long prescription was to be broken through - if a power, lying in abeyance from the time it was granted, was now to be reasserted, the full provisions of the rule should have been complied with - the return should have been taken into consideration as soon as forwarded - and the ten days, which the rule allows before the withholding of approval shall be considered final, should have been devoted to sifting the matters alleged in the memorial. All this, it is true, would have cost "their lordships of the starred chamber" some trouble. It would have brought my Lord Plunkett from his studies of Ovid at Old Connaught, and drawn his Lordship of Kildare from his ecclesiastical avocations at Glassnevin. It was much less troublesome to decide without examining - it was much easier for their high mightinesses to insult without reason a respectable citizen - to deprive him of the just prize of an honourable ambition. There are men to whom nothing is so pleasing as the exercise of arbitrary power - nothing so troublesome as to be obliged to find reason or justice for their acts.
But this is not all - their subsequent proceedings still more effectually set the stamp of absurdity on these - the freemen of Cork hold a new election - they return Mr. Besnard as mayor, and the same gentlemen as sheriffs - a memorial is presented against this new return by the same individuals as before - their agent is again called in and asked if he is ready with evidence - he answers that he is not - upon which the Council issue another document, in which they say that as the memorialists are not prepared with any evidence, they must approve of the return. This certainly was the just course - but why was it not followed in the first instance? It certainly is strange that the Council assigned the very same reason for their disapproval of Mr. Deane, and their approval of Mr. Besnard - namely, that they had no evidence against either. We have sufficient in the documents furnished by the Privy Council themselves to condemn their proceedings as arbitrary and absurd; but we do not scruple to say, that the Privy Council do not possess an arbitrary power of rejection; as a judicial body, they are bound by rules of equity and justice; and, were the position important, we could, we think, maintain it, that they have not the power of withholding their approbation, unless they can prove that the officer elected has been legally convicted of a misdemeanor. In the present case, however, this is immaterial. Their lordships have furnished the grounds of their own condemnation. Whatever be the extent of their power, they confess that they have exercised it in the most arbitrary manner. It was unfortunate that the rules of the corporation prevented the reelection of Mr. Deane - unfortunate as respects the assertion of the rights of the freemen of Cork, which were violated in his person. We cannot say that it is unfortunate as regards himself. It is true, that he has been deprived of that which has been, no doubt, the object of his fair ambition - an office to which he might almost be said to have an hereditary claim - to which, we believe, upon more than one occasion his ancestors had been advanced. But among a generous people the victim of arbitrary power is almost always sure of meeting with a sympathy that more than atones for the injury of oppression. The wrong that has been done him is a public wrong, and he will be regarded as a public sufferer. He has, too, received this proud testimony to his character, that when the malice of his enemies sought occasion against him, the worst they could allege is, that he is an Orangeman; they could find no other accusation than that he belonged to an association of loyalty and religion - a crime in which he has as his partners the most distinguished and the most virtuous in the land. He has carried with him into private life, not only the respect of his fellow-citizens, but a proud proof of their esteem - their high and honorable testimony to his integrity and worth. The freemen of Cork, who, in their corporate capacity, have presented him with the most laudatory addresses, are, perhaps, the most respectable body of freemen in the empire; and with their recorded approbation, and the still higher testimony of his own conscience, he may well disregard the efforts of arbitrary power. Moral worth can well afford to dispense with those outward insignia, that confer on its possessor no additional title to respect. The honors of a virtuous man are far higher than any that can be bestowed by the voice of the multitude, or taken away by the fiat of a Privy Council; and rectitude and independence give to their possessor a dignity which no magistracy could confer, and from which no tyrant can debar.
Virtus repulsae nescia sordidae
Intaminatis fulget horroribus
Nec sumit aut ponit secures
Arbitrio popularis aurae-
The Privy Council have done their worst; they have deprived Mr. Deane of the honor of the mayoralty - they cannot take from him the respect and esteem of his fellow-citizens; and in the possession of that esteem, and in the consciousness that he deserves it, he will enjoy far more solid, and far more lasting gratification than he could have found even in the high office of which he has been deprived. All that conferred real honor on that office, Mr. Deane possesses - the confidence and respect of those who are best acquainted with him. These are honors that will not pass away with a year of office, or be laid aside with a mace; they are honors that the decision of a Plunkett can never tarnish; an upright character is a blessing that the titled and the pensioned renegade may envy, but never can take away; and its possessor has this consolation, that that character will never be injured by a steady adherence to principle, no matter what that adherence may cost.
Consul nou unius anni
Sed quoties bonus atque fidus
Judex honestum praetulit utili.
One word more and we have done. It is possible for Lord Mulgrave to find for his conduct the pretext that he dared not openly to put forward, and to have rejected Mr. Deane because he was an Orangeman. We tell Lord Mulgrave, that, if so, this was an insult to every individual whose name is enrolled among the members of the Orange body; and his Lordship knows that that list contains hundreds of names in every sense of the word more respectable than his own. But where was his abhorrence of political associations when he was preceded through the streets of our city by the lodges of Ribandmen and Trades' Unionists, parading ostentatiously the emblems of murder and sedition? Where was it when he invited to his table as his political friend - for in no other character could Daniel O'Connell be the associate of the Viceroy - the president of one of those noisome conventions that shed their moral pestilence through our city - those demoralizing "unions" that debauch our artizans and make traitors and ruffians of our once industrious workmen? On the same page on which we write the rejection of Mr. Deane, let us also record the fact, that Daniel O'Connell, the foul slanderer of all that is great and good in the land - the ten times convicted liar - the once convicted preacher of sedition - was entertained under the roof of the house that is still called in mockery his Majesty's castle of Dublin. We have not, we confess, patience while we write. "Still reeking with the foul steam of treasonable agitation," (if we may borrow the strong language of the Times,) the man who called the King's brother "a white-whiskered liar with the foul and unmanly falsehood still warm upon his fetid breath -is a guest at the table at which presides the man who calls himself the representative of the King. To what a state of slavery - yes, slavery - is the monarch of England reduced - at the feet of the vilest faction that ever disgraced a country - whenever the feelings of his natural affection, of his personal pride, are outraged - and under his roof, in his castle, there sits at his board the wretch who called his brother "a white-whiskered liar?" How long is this tyranny to last ? How long is THE REIGN OF RUFFIANISM to continue? How long shall every generous feeling of the nation be outraged, and every thing that is respectable be trampled on and insulted?
We have hitherto, we confess, been inclined, perhaps in the spirit of the charity that "hopeth all things," to believe Lord Mulgrave possessed of the principles and feelings of a gentleman; but by his entertainment of Mr. O'Connell he has made it impossible for us any longer to continue in this belief. Those acts, which might be supposed to be incident to his political mission, and which might be the result of his political instructions, we could not but condemn in the Viceroy - but from the Viceroy, even for the sake of literature, we were anxious to separate the man. We saw places conferred upon the basest and most incompetent candidates that could be found - men little better than idiots made assistant barristers, because they happened to have done service to the cause of sedition. We saw compliments interchanged between the king's representative and the most vulgar and the most insolent of the hierarchs of treason. At all these things we were indignant; but still, we can honestly say, we endeavoured to separate Lord Mulgrave - the man whose accomplishments were exquisite enough for the cox-comb, and whose punctilious refinement approached the affected delicacy of the "petit maitré" - we separated, we say, his personal character from the dirty occupations in which his appointment as the cat's-paw of O'Connell involved him. It is true, there was something revolting to the feelings of a gentleman in accepting of such a situation; but party feelings may have induced his Lordship to accept of the disgusting office and we made every allowance for his peculiar position. But the most liberal allowance will not furnish the shadow of excuse for the act upon which we comment. He insulted his sovereign by the invitation, and in thus insulting his master, by a necessary consequence, he degraded himself. It is impossible any longer to separate the man from his politics. Lord Mulgrave has identified his own personal character with all the blackguardism of the faction - and we wish him joy of the association. Can it be, that feeling himself lowered by the office in which he is placed, he has become indifferent to character? Can it be that in the sickening knowledge of his true position every feeling of self-respect has died; and that in the consciousness of degradation Lord Mulgrave has become mean?
The gross and vulgar insolence - the foul and beastly personalities of O'Connell's speech - have excited the deep disgust of the empire. Even the most radical prints assailed the cowardly reviler who called the King's brother a "white whiskered liar," and the hero of Waterloo a "stunted corporal." There is but one solitary spot where anything that even by courtesy can be called respectable is to be found, to which the universal feeling of execration has not penetrated. While men of all parties are giving utterance to their deep disgust at the atrocious expressions; while the common consent of mankind is stigmatising the wretch who used them as unfit for the society of any honourable man - that individual is feasted as the chosen guest of the Lord Lieutenant.
But these things will produce their effect. The rabid violence, the imperious insolence, the ill disguised treason of O'Connell, are arousing the people over whom he holds dictatorship. All men see that he is the master of the ministry, and the murmur is swelling to a tone of thunder that proclaims- "we will not have this man to rule over us;" and it is with a full conviction that our question will speedily be answered by the voice of an outraged and indignant nation that we ask again, "how long is the REIGN OF RUFFIANISM TO LAST?"